When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people and same-sex couples must feel much less confident in their position. Circuit courts are now deeply split on the issue, and the prevailing winds are blowing west. The Ninth Circuit has not only made explicit what every reasonable observer already knew—that Romer, Lawrence, and Windsor each applied something more searching than traditional rational basis review—but it has also provided a standard with which to analyze sexual-orientation cases moving forward. To paraphrase the court, to justify intrusions into sexual privacy or disparate treatment of gay people, the state must demonstrate (1) that its actions are necessary to significantly further an important governmental interest; and (2) that no less burdensome approach is likely to achieve the same results. This seems like an eminently sensible test, and it is one that the justices would do well to adopt when this question inevitably makes its way back onto their docket.
112 Mich. L. Rev. First Impressions 142 (2014).
Bartrum, Ian C., "The Ninth Circuit’s Treatment of Sexual Orientation: Defining “Rational Basis Review with Bite”" (2014). Scholarly Works. Paper 893.