Witt v. Department of the Air Force

2008

Venue: 9th Cir.
Facts: Major Witt has been a great officer, but is discharged after she is discovered to be homosexual.
Posture: Witt sues after she is suspended from duty- 12(b)(6) gets her. Then she is discharged.
Issue: Does DADT violate substantive due process, equal protection, and procedural due process?
Holding: Reversed in part and affirmed in part.
Rule: For due process, it's heightened scrutiny; for equal protection, it's rational basis.
Reasoning: The first thing to do is decide what level of scrutiny to apply, and we look to precedent for that. Lawrence v. Texas was a due process case, and it said heightened scrutiny. That's a three-pronged test:
  1. Important governmental interest
  2. The intrusion myst significantly further that interest
  3. The intrusion must be necessary to further that interest
We need more factual record to decide whether USAF meets this test, so we reverse the discharge on this ground remand.

For the equal protection claim, we've got a case that's dispositive: it's rational basis (because Lawrence didn't touch equal protection), and we've already got precedent saying that DATD passes rational basis. So on that ground, we affirm the discharge.

Dicta: Hard to imagine what compelling interest is narrowly sered by discharging homosexuals but not others who engage in sexual relations privately off duty, off base, and with civillians.