In the Blog
California Courts to Scrutinize Don’t Ask Don’t Tell
There’s an interesting trend developing in US queer rights cases at the moment. Hot on the heels of the California marriage decision, the federal appeals court in California has reinstated a lawsuit challenging "don’t ask, don’t tell”.
The lawsuit is being brought by a decorated Air Force flight nurse who was thrown out of the military after a civilian tip-off about her six-year relationship with another woman. The case was initially dismissed, but the US Court of Appeals has reinstated it.
What’s interesting is the reason for the Court of Appeals’ decision. There was an article on Slate earlier this week that explained the significance of the California marriage decision (it’s written by Kenji Yoshino, who is incidentally the author of Covering, a discussion of the ways in which society’s limited tolerance of race and homosexuality demands that nobody flaunt their difference).
The article explains, with the minimum of legal jargon, the difference between “rational basis” and “strict scrutiny”, two different standards of review applied by the courts to constitutional laws that constitute the main distinction between the gay marriage decision in Massachusetts, and the one in California.
Basically, rational basis is the lowest level of scrutiny. It’s there to prevent laws that serve no reasonable purpose, and it’s granted fairly liberally. Strict scrutiny is far more stringent. It’s only applied when the court decides that a law infringes on a fundamental right, or discriminates against a suspect classification of people. Laws preventing same-sex couples from marrying seem fairly obviously to fall into at least the first of these categories, which should ensure they are subjected strict scrutiny. But the California Supreme Court’s decision earlier this month is the first to actually do so.
Yoshino explains why this is so important:
It is helpful for the California opinion that it closely resembles a U.S. Supreme Court decision that has stood the test of time: Loving v. Virginia. In that 1967 ruling, the court struck down all remaining state bans on interracial marriage under the federal constitution. Like Thursday’s decision in California, Loving made the same dual move of invalidating legislation, based on strict scrutiny, on grounds of both liberty and equality. This move is unusual—indeed, I know of no case other than Loving and Thursday’s case that has made it.
And so, back to “don’t ask, don’t tell”. Although the court stopped short of applying strict scrutiny to the military’s policy, it has for the first time allowed that such intrusion into the private lives of military personnel requires a greater level of scrutiny than rational basis demands (the military’s rationale for “don’t ask” is that openly queer service members “threaten morale, discipline and unit cohesion,” a claim with which no court until now has found serious fault).
The lawsuit is still far from won; all this decision means is that it’s going to get its day in court. But the fact that courts are finally taking a serious look at some of the restrictions on the rights and freedoms of queer Americans is encouraging.
As Yoshino says, “the standards [of legal scrutiny] supposedly only express how closely the court will look at laws, but looks can kill.”