FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET WITT, Major, 

Plaintiff-Appellant,

v.

DEPARTMENT OF THE AIR FORCE; No. 06-35644

ROBERT M. GATES,* Secretary of

D.C. No. Defense; MICHAEL W. WYNNE,  CV-06-05195-RBL Secretary, Department of the Air

Force; MARY L. WALKER, Colonel, OPINION

Commander, 446th Aeromedical

Evacuation Squadron, McChord

AFB,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

November 5, 2007—Seattle, Washington

Filed May 21, 2008

Before: William C. Canby, Senior Circuit Judge,

Susan P. Graber, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Canby

*Robert M. Gates is substituted for his predecessor Donald H. Rumsfeld

as Secretary of Defense. Fed. R. App. P. 43(c)(2). 

5841
COUNSEL

James E. Lobsenz, Carney Badley Spellman, P.S., Seattle,

Washington, for the appellant. 

Aaron H. Caplan, ACLU of Washington, Seattle, Washington,

for the appellant. 

Peter Keisler, Attorney General, Department of Justice,

Washington, DC, for the appellees. 

Anthony J. Steinmeyer, Assistant Branch Director, Appellate

Staff, Civil Division, Department of Justice, Washington, DC,

for the appellees. 

OPINION

GOULD, Circuit Judge: 

Plaintiff-Appellant Major Margaret Witt (“Major Witt”)

sued the Air Force, the Secretary of Defense, the Secretary of

the Air Force, and her Air Force commander (“the Air

Force”) after she was suspended from duty as an Air Force

reservist nurse on account of her sexual relationship with a

civilian woman. Major Witt alleges that 10 U.S.C. § 654,

commonly known as the “Don’t Ask, Don’t Tell” policy

(“DADT”), violates substantive due process, the Equal Protection Clause, and procedural due process. She seeks to

WITT v. DEP’T OF THE AIR FORCE 5845
enjoin DADT’s enforcement. The district court dismissed the

suit under Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim. We reverse and remand in part, and affirm in

part. 

I

Major Witt entered the Air Force in 1987.1 She was commissioned as a Second Lieutenant that same year and promoted to First Lieutenant in 1989, to Captain in 1991, and to

Major in 1999. In 1995, she transferred from active to reserve

duty and was assigned to McChord Air Force Base in

Tacoma, Washington. 

By all accounts, Major Witt was an outstanding Air Force

officer. She received medals for her service, including the

Meritorious Service Medal, the Air Medal, the Aerial

Achievement Medal, the Air Force Commendation Medal,

and numerous others. Her annual “Officer Performance

Reviews” commended her accomplishments and abilities.

Major Witt was made an Air Force “poster child” in 1993,

when the Air Force featured her in recruitment materials; photos of her appeared in Air Force promotional materials for

more than a decade. 

Major Witt was in a committed and long-term relationship

with another woman from July 1997 through August 2003.

Major Witt’s partner was never a member nor a civilian

employee of any branch of the armed forces, and Major Witt

states that she never had sexual relations while on duty or

while on the grounds of any Air Force base. During their relationship, Major Witt and her partner shared a home in Spokane, Washington, about 250 miles away from McChord Air

1Because the district court dismissed the suit below for failure to state

a claim, we present and consider the facts as alleged by Major Witt in a

light most favorable to her. Miranda v. Clark County, 319 F.3d 465, 468

(9th Cir. 2003) (en banc). 

5846 WITT v. DEP’T OF THE AIR FORCE
Force Base. While serving in the Air Force, Major Witt never

told any member of the military that she was homosexual. 

In July 2004, Major Witt was contacted by Major Adam

Torem, who told her that he had been assigned to investigate

an allegation that she was homosexual. She declined to make

any statement to him. An Air Force chaplain contacted her

thereafter to discuss her homosexuality, but she declined to

speak to him, as well. In November 2004, Major Witt’s Air

Force superiors told her that they were initiating formal separation proceedings against her on account of her homosexuality. This was confirmed in a memorandum that Major Witt

received on November 9, 2004. That memorandum also stated

that she could not engage in any “pay or point activity pending resolution” of the separation proceedings. Stated another

way, she could not be paid as a reservist, she could not earn

points toward promotion, and she could not earn retirement

benefits. When she received this memorandum, Major Witt

was less than one year short of twenty years of service for the

Air Force, at which time she would have earned a right to a

full Air Force retirement pension. 

Sixteen months later, on March 6, 2006, Major Witt

received another memorandum notifying her that a discharge

action was being initiated against her on account of her homosexuality. It also advised her of her right to request an administrative hearing, which she promptly did. On April 12, 2006,

Major Witt filed this suit in the United States District Court

for the Western District of Washington, seeking declaratory

and injunctive relief from the discharge proceedings. 

A military hearing was held on September 28-29, 2006.

The military board found that Major Witt had engaged in

homosexual acts and had stated that she was a homosexual in

violation of DADT. It recommended that she be honorably

discharged from the Air Force Reserve. The Secretary of the

Air Force acted on this recommendation on July 10, 2007,

ordering that Major Witt receive an honorable discharge. 

WITT v. DEP’T OF THE AIR FORCE 5847
Major Witt is well regarded in her unit, and she believes

that she would continue to be so regarded even if the entire

unit was made aware that she is homosexual. She also contends that the proceedings against her have had a negative

effect on unit cohesion and morale, and that there is currently

a shortage of nurses in the Air Force of her rank and ability.

We must presume those facts to be true for the purposes of

this appeal.2

II

A

We review de novo a dismissal for failure to state a claim.

Pruitt v. Cheney, 963 F.2d 1160, 1162-63 (9th Cir. 1992). 

DADT, 10 U.S.C. § 654, permits the discharge of members

of the armed forces on account of homosexual activity. In relevant part, it provides: 

(b) Policy.—A member of the armed forces shall

be separated from the armed forces under regulations

prescribed by the Secretary of Defense if one or

more of the following findings is made and approved

2Four amicus briefs were filed in this case. The International Commission of Jurists and the Center for Constitutional Rights wrote in support

of Major Witt and argued that the United States Supreme Court has recognized a fundamental privacy right and that the international legal trend is

toward legal equality for homosexuals. The Lambda Legal Defense and

Education Fund also supported Major Witt and argued that the Supreme

Court has recognized a fundamental right to sexual identity and that the

district court undervalued the value of the liberty interest at stake in the

case. The Servicemembers Legal Defense Network wrote in support of

Major Witt and argued that the rationale for DADT is not compelling and

that DADT forces homosexual service members to hide their identity to

avoid discharge. The National Legal Foundation wrote in support of the

Air Force and argued that DADT has a valid purpose of supporting unit

cohesion, reducing sexual tension, and protecting privacy. We appreciate

the advice of all amici on the important issues before us. 

5848 WITT v. DEP’T OF THE AIR FORCE
in accordance with procedures set forth in such regulations: 

(1) That the member has engaged in, attempted to

engage in, or solicited another to engage in a homosexual act or acts unless there are further findings,

made and approved in accordance with procedures

set forth in such regulations, that the member has

demonstrated that— 

(A) such conduct is a departure from the member’s usual and customary behavior; 

(B) such conduct, under all the circumstances, is

unlikely to recur; 

(C) such conduct was not accomplished by use of

force, coercion, or intimidation; 

(D) under the particular circumstances of the

case, the member’s continued presence in the armed

forces is consistent with the interests of the armed

forces in proper discipline, good order, and morale;

and 

(E) the member does not have a propensity or

intent to engage in homosexual acts. 

(2) That the member has stated that he or she is

a homosexual or bisexual, or words to that effect,

unless there is a further finding, made and approved

in accordance with procedures set forth in the regulations, that the member has demonstrated that he or

she is not a person who engages in, attempts to

engage in, has a propensity to engage in, or intends

to engage in homosexual acts. 

WITT v. DEP’T OF THE AIR FORCE 5849
(3) That the member has married or attempted to

marry a person known to be of the same biological

sex. 

Id.

Major Witt argues that DADT violates substantive due process, the Equal Protection Clause, and procedural due process.

The Ninth Circuit has considered and rejected similar claims

in the past, see, e.g., Holmes v. Cal. Army Nat’l Guard, 124

F.3d 1126, 1136 (9th Cir. 1997) (rejecting an Equal Protection

Clause challenge to DADT under rational basis review); Philips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir. 1997) (same);

Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980)

(rejecting procedural due process and substantive due process

challenges to a Navy regulation forbidding homosexual service in the Navy). However, Major Witt argues that Holmes,

Philips, and Beller are no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme

Court struck down a Texas statute that banned homosexual

sodomy. Accordingly, to resolve this appeal, we must consider the effect of Lawrence on our prior precedents. 

B

[1] We first assess whether Major Witt has standing to pursue this action. “[T]he irreducible constitutional minimum of

standing contains three elements. First, the plaintiff must have

suffered an ‘injury in fact’—an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual

or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations, footnote, and quotation marks omitted). Second, plaintiff must present a “causal connection between the injury and

the conduct complained of—the injury has to be fairly . . .

traceable to the challenged action of the defendant, and not

. . . the result of the independent action of some third party

not before the court.” Id. (internal quotation marks and brack5850 WITT v. DEP’T OF THE AIR FORCE
ets omitted). Finally, “it must be ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’ ” Id. at 561. 

[2] There is little doubt that Major Witt meets the second

and third requirements, if she can meet the first requirement—

an actual injury from DADT. There are, however, questions

about whether she has suffered an actual injury for Article III

purposes. Although Major Witt has been suspended, the military board recommended her discharge, and the Secretary of

the Air Force ordered her discharge, she has not been formally discharged from the military, as far as the record before

us shows. Accordingly, at least some of Major Witt’s claims

are unripe because they rely on harms which may or may not

actually occur. See Texas v. United States, 523 U.S. 296, 300

(1998) (“A claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or

indeed may not occur at all.” (internal quotation marks omitted)) 

[3] We conclude that Major Witt meets the Article III

requirements for her substantive due process and equal protection claims. Although she has not been discharged formally, Major Witt suffered a cognizable injury on account of

her long-term suspension. In addition to the loss of pay and

points toward promotion and retirement benefits, Major Witt

asserts in a declaration in the record that her suspension seriously harmed her chances of being promoted to Colonel. This

injury is sufficient to establish “actual injury” for Article III

purposes. 

[4] However, the situation is different for Major Witt’s procedural due process claim. Major Witt does not allege that she

has been deprived of life or a property interest. Her procedural due process claim rests on her assertion that her discharge papers will reflect the reasons for her discharge, and

that this in turn will result in a stigma. The record indicates

that Major Witt will receive an honorable discharge. We have

WITT v. DEP’T OF THE AIR FORCE 5851
suggested that an honorable discharge could be stigmatizing

if prospective employers had some reason to know of the reasons for the honorable discharge. See Beller, 632 F.2d at 807

(rejecting claim that an honorable discharge resulted in stigma

because there was “no evidence indicating that the plaintiffs’

service records [we]re likely to impose stigma upon them or

make it more difficult for them to seek post-discharge

employment”). However, the record does not reflect what will

appear on her discharge certificate and, thus, whether any

stigma will occur.3 Accordingly, the procedural due process

claim is not ripe for adjudication on this record because the

injury that Major Witt asserts may or may not occur. See Paul

v. Davis, 424 U.S. 693, 708-10 (1976) (holding that “defamation, standing alone” does not suffice for a stigma-plus claim;

there must be “a right or status previously recognized by state

law [that] was distinctly altered or extinguished”). 

[5] We hesitate to dismiss the claim at this stage, however,

because the factual situation surrounding Major Witt’s discharge may have changed in the course of this appeal. We

therefore remand the procedural due process claim to the district court, where the court can consider the factual details of

her discharge with more complete and current information.

3Major Witt relies on a number of cases that have involved “suspension” to support her claim that her liberty has already been violated by her

suspension pending a final discharge. However, all of those cases involved

property interests. See FDIC v. Mallen, 486 U.S. 230, 240 (1988) (“It is

undisputed that appellee’s interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property

right protected by the Fifth Amendment Due Process Clause.”); Barry v.

Barchi, 443 U.S. 55, 64 (1979) (“[I]t is clear that Barchi had a property

interest in his license sufficient to invoke the protection of the Due Process

Clause.”); United States v. Two Hundred Ninety-Five Ivory Carvings, 689

F.2d 850, 853 (9th Cir. 1982) (“Since its summary seizure and during the

entire period of the delay, Segal has been deprived of his property without

an impartial hearing concerning the seizure.”). The plaintiffs in each of

those cases had a property right that was actively infringed by a delayed

hearing. Here, Major Witt alleges only a right to be free of a stigma that

may or may not occur, and which is not currently present. 

5852 WITT v. DEP’T OF THE AIR FORCE
III

To evaluate Major Witt’s substantive due process claim, we

first must determine the proper level of scrutiny to apply. In

previous cases, we have applied rational basis review to

DADT and predecessor policies. See, e.g., Holmes, 124 F.3d

at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt

argues that Lawrence effectively overruled those cases by

establishing a fundamental right to engage in adult consensual

sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that

Lawrence requires something more than traditional rational

basis review and that remand is therefore appropriate. 

A

[6] In Lawrence, the Supreme Court struck down a Texas

statute that criminalized consensual homosexual sodomy. 539

U.S. at 578. In doing so, it also overruled Bowers v. Hardwick, 478 U.S. 186 (1986), a 1986 decision of the Supreme

Court that had upheld a Georgia law criminalizing consensual

sodomy. The Court in Lawrence noted that “broad statements

of the substantive reach of liberty under the Due Process

Clause” can be found in earlier cases, including Pierce v.

Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska,

262 U.S. 390 (1923), and, most pertinently, in Griswold v.

Connecticut, 381 U.S. 479 (1965). Lawrence, 539 U.S. at 564.

“After Griswold,” the Court wrote, “it was established that the

right to make certain decisions regarding sexual conduct

extends beyond the marital relationship.” Id. at 565. 

Turning to Bowers, the Court recognized “the Court’s own

failure to appreciate the extent of the liberty at stake” in that

case. Id. at 567. The Court explained:

To say that the issue in Bowers was simply the right

to engage in certain sexual conduct [as the Court did

in Bowers] demeans the claim the individual put forWITT v. DEP’T OF THE AIR FORCE 5853
ward, just as it would demean a married couple were

it to be said marriage is simply about the right to

have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to

do no more than prohibit a particular sexual act.

Their penalties and purposes, though, have more farreaching consequences, touching upon the most private human conduct, sexual behavior, and in the

most private of places, the home. The statutes do

seek to control a personal relationship that, whether

or not entitled to formal recognition in the law, is

within the liberty of persons to choose without being

punished as criminals. 

Id.

The Court then discussed the reach of its decision, summarizing: 

This, as a general rule, should counsel against

attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent

injury to a person or abuse of an institution the law

protects. It suffices for us to acknowledge that adults

may choose to enter upon this relationship in the

confines of their homes and their own private lives

and still retain their dignity as free persons. When

sexuality finds overt expression in intimate conduct

with another person, the conduct can be but one element in a personal bond that is more enduring. The

liberty protected by the Constitution allows homosexual persons the right to make this choice. 

Id.

[7] The Supreme Court then provided additional reasons

why it was overruling Bowers. First, the Court explained,

Bowers was predicated on the erroneous belief that homosex5854 WITT v. DEP’T OF THE AIR FORCE
uality was “subject to state intervention throughout the history

of Western civilization.” Id. at 571 (internal quotation marks

omitted). Second, the logic in Bowers “demean[ed] the lives

of homosexual persons” and had been widely rejected by state

courts and international tribunals. Id. at 575-76. 

The Supreme Court concluded:

[Homosexuals’] right to liberty under the Due Process Clause gives them the full right to engage in

their conduct without intervention of the government. “It is a promise of the Constitution that there

is a realm of personal liberty which the government

may not enter.” Planned Parenthood v. Casey, 505

U.S. 833, 847 (1992). The Texas statute furthers no

legitimate state interest which can justify its intrusion into the personal and private life of the individual. 

Id. at 578. 

B

Major Witt argues that Lawrence recognized a fundamental

right to engage in private, consensual, homosexual conduct

and therefore requires us to subject DADT to heightened scrutiny. The Air Force argues that Lawrence applied only rational basis review, and that the Ninth Circuit’s decisions in

Holmes, Philips, and Beller remain binding law on DADT’s

validity. Because Lawrence is, perhaps intentionally so, silent

as to the level of scrutiny that it applied, both parties draw

upon language from Lawrence that supports their views. 

Major Witt argues that the “plain language” of Lawrence

demonstrates that heightened scrutiny is required here. She

notes that, in Lawrence, the Supreme Court relied on Griswold, 381 U.S. 479, Roe v. Wade, 410 U.S. 113 (1973), and

Carey v. Population Services International, 431 U.S. 678

WITT v. DEP’T OF THE AIR FORCE 5855
(1977), all of which are fundamental rights cases. She also

observes that the language of Lawrence emphasizes the

importance of the right at issue and refers to “substantial protections” afforded “adult persons in deciding how to conduct

their private lives in matters pertaining to sex.” “Substantial

protections” are not afforded under rational basis review,

Major Witt argues, because rational basis review considers

only whether the challenged policy is rationally related to a

legitimate state interest. 

In response, the Air Force argues that the same “plain language” implies only rational basis review. In particular, the

Air Force stresses the passage in Lawrence that states that the

challenged statute “further[ed] no legitimate state interest

which can justify its intrusion into the personal and private

life of the individual,” 539 U.S. at 578 (emphasis added).

According to the Air Force, legitimate interests are the hallmark of rational basis review. The Air Force also notes that

Lawrence never stated that it was applying anything other

than rational basis review, so, the Air Force concludes, it

surely was not. 

1

As a preliminary matter, the Air Force argues that no court

to date has held that Lawrence applied a heightened level of

scrutiny. However, the situation is more complex than that

presented by the Air Force. Although the Air Force argues

that “every Article III court to have decided th[e] question

[whether Lawrence applied heightened scrutiny], including

three courts of appeals, agreed with the District Court in this

case that Lawrence applied rational-basis review, meaning

that the case did not implicate a fundamental right,” that is not

the case. As we see it, only one court of appeals has directly

considered the issue. 

The first case that the Air Force claims “decided this question,” Sylvester v. Fogley, 465 F.3d 851 (8th Cir. 2006), is

5856 WITT v. DEP’T OF THE AIR FORCE
discussed at length in its brief. However, the Eighth Circuit

explicitly declined to address the issue in Sylvester. See id. at

858 (“[W]e need not determine whether Sylvester’s sexual

conduct is protected as a fundamental privacy right because

we would reach the same result applying either the strictscrutiny standard of review or the rational-basis standard of

review.”). The Seventh Circuit made a similar disclaimer in

the next case that the Air Force discusses, Muth v. Frank, 412

F.3d 808 (7th Cir. 2005), which addressed the issue only in

dicta. In Muth, the court said:

It may well be that future litigants will insist that

Lawrence has broader implications for challenges to

other state laws criminalizing consensual sexual conduct. However, because this case is here on habeas

review, the only question before this court is whether

Lawrence announced a new rule proscribing laws

prohibiting the conduct for which Muth was convicted [, incest]. 

Id. at 818. The court concluded that Lawrence’s holding did

not apply to the activity in question—incest—and, thus, did

not consider the level of scrutiny applied in Lawrence. Id.

Only one of the three courts of appeals that the Air Force

claims to have “decided this question” actually has done so.

In Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804, 817 (11th Cir. 2004), the Eleventh

Circuit upheld a law that forbade homosexuals from adopting

children, explicitly holding that Lawrence did not apply strict

scrutiny. Otherwise, our sister circuits are silent. 

Nor have we previously directly considered the implications of Lawrence. In Fields v. Palmdale School District, 427

F.3d 1197, 1208 (9th Cir. 2005), we noted that the right to privacy “encompasses a right of sexual intimacy.” (Citing Lawrence.) However, we concluded that the action at issue in

Fields, a survey of elementary school children that included

WITT v. DEP’T OF THE AIR FORCE 5857
questions relating to sex, did not interfere with the right of

parents to make intimate decisions. Id. Accordingly, we did

not apply Lawrence, whatever the level of scrutiny it might

require.4

One other court of note has considered the implications of

Lawrence. In United States v. Marcum, 60 M.J. 198 (C.A.A.F.

2004), the United States Court of Appeals for the Armed

Forces considered a challenge to an Air Force sodomy law

brought by a serviceman who had been convicted of consensual sodomy with a man of inferior rank within his chain of

command. That court concluded that the application of Lawrence must be addressed “in context and not through a facial

challenge.” Id. at 206. Lawrence, the court concluded, did not

identify a fundamental right; however, it required “searching

constitutional inquiry.” Id. at 205. The court distilled this

inquiry into a three-step analysis:

First, was the conduct that the accused was found

guilty of committing of a nature to bring it within the

liberty interest identified by the Supreme Court?

Second, did the conduct encompass any behavior or

factors identified by the Supreme Court as outside

the analysis in Lawrence? Third, are there additional

factors relevant solely in the military environment

that affect the nature and reach of the Lawrence liberty interest? 

Id. at 206-07 (citation omitted). 

The Court of Appeals for the Armed Forces, in our view,

4The Air Force states that, in Hensala v. Department of the Air Force,

343 F.3d 951 (9th Cir. 2003), Judge Tashima held that Lawrence and

Holmes “are not closely on point” so that “Holmes remains the law of the

land.” However, Judge Tashima wrote only a partial dissent in that case.

See id. at 959 n.1 (Tashima, J., dissenting in part). The panel majority held

that it need not reach the issue. Id. at 959 (majority opinion). 

5858 WITT v. DEP’T OF THE AIR FORCE
applied a heightened level of scrutiny. By considering

whether the policy applied properly to a particular litigant,

rather than whether there was a permissible application of the

statute, the court necessarily required more than hypothetical

justification for the policy—all that is required under rational

basis review. The court also required consideration of “additional factors” that might justify the policy, which might be

viewed as a corollary to the requirement that a challenged policy serve a “compelling” or “important” government interest

under traditional forms of heightened scrutiny. 

With this mixed background, we now turn to our analysis

of Lawrence.

2

The parties urge us to pick through Lawrence with a finetoothed comb and to give credence to the particular turns of

phrase used by the Supreme Court that best support their

claims. But given the studied limits of the verbal analysis in

Lawrence, this approach is not conclusive. Nor does a review

of our circuit precedent answer the question; as the Court of

Appeals for the Armed Forces stated in Marcum, 68 M.J. at

204, “[a]lthough particular sentences within the Supreme

Court’s opinion may be culled in support of the Government’s

argument, other sentences may be extracted to support Appellant’s argument.” In these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did,

rather than by dissecting isolated pieces of text. In so doing,

we conclude that the Supreme Court applied a heightened

level of scrutiny in Lawrence. 

[8] We cannot reconcile what the Supreme Court did in

Lawrence with the minimal protections afforded by traditional

rational basis review. First, the Court overruled Bowers, an

earlier case in which the Court had upheld a Georgia sodomy

law under rational basis review. If the Court was undertaking

rational basis review, then Bowers must have been wrong

WITT v. DEP’T OF THE AIR FORCE 5859
because it failed under that standard; namely, it must have

lacked “any reasonably conceivable state of facts that could

provide a rational basis for the classification.” FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313 (1993). But the Court’s

criticism of Bowers had nothing to do with the basis for the

law; instead, the Court rejected Bowers because of the

“Court’s own failure to appreciate the extent of the liberty at

stake.” Lawrence, 539 U.S. at 567. 

The criticism that the Court in Bowers had misapprehended

“the extent of the liberty at stake” does not sound in rational

basis review. Under rational basis review, the Court determines whether governmental action is so arbitrary that a rational basis for the action cannot even be conceived post hoc. If

the Court was applying that standard—“a paradigm of judicial

restraint,” Beach, 508 U.S. at 314—it had no reason to consider the extent of the liberty involved. Yet it did, ultimately

concluding that the ban on homosexual sexual conduct sought

to “control a personal relationship that, whether or not entitled

to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Lawrence, 539 U.S. at 567. This is inconsistent with rational basis

review. 

[9] Second, the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened

scrutiny. As Major Witt pointed out, those cases include Griswold, Roe, and Carey. Moreover, the Court stated that Casey,

a post-Bowers decision, cast its holding in Bowers into doubt.

Lawrence, 539 U.S. at 573-74. Notably, the Court did not

mention or apply the post-Bowers case of Romer v. Evans,

517 U.S. 620 (1996), in which the Court applied rational basis

review to a law concerning homosexuals. Instead, the Court

overturned Bowers because “[i]ts continuance as precedent

demeans the lives of homosexual persons.” Lawrence, 539

U.S. at 575. 

[10] Third, the Lawrence Court’s rationale for its holding—

the inquiry analysis that it was applying—is inconsistent with

5860 WITT v. DEP’T OF THE AIR FORCE
rational basis review. The Court declared: “The Texas statute

furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id.

at 578 (emphasis added). Were the Court applying rational

basis review, it would not identify a legitimate state interest

to “justify” the particular intrusion of liberty at issue in Lawrence; regardless of the liberty involved, any hypothetical

rationale for the law would do. 

[11] We therefore conclude that Lawrence applied something more than traditional rational basis review. This leaves

open the question whether the Court applied strict scrutiny,

intermediate scrutiny, or another heightened level of scrutiny.

Substantive due process cases typically apply strict scrutiny in

the case of a fundamental right and rational basis review in all

other cases. When a fundamental right is recognized, substantive due process forbids the infringement of that right “at all,

no matter what process is provided, unless the infringement

is narrowly tailored to serve a compelling state interest.” Reno

v. Flores, 507 U.S. 392, 301-02 (1993) (emphasis omitted).

Few laws survive such scrutiny, and DADT most likely would

not.5 However, we hesitate to apply strict scrutiny when the

Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the

issue here. 

[12] Instead, we look to another recent Supreme Court case

that applied a heightened level of scrutiny to a substantive due

process claim—a scrutiny that resembles and expands upon

the analysis performed in Lawrence.

6

 In Sell v. United States,

5The rationale for DADT is found at 10 U.S.C. § 654(a)(15), which

states Congress’s finding that: 

The presence in the armed forces of persons who demonstrate a

propensity or intent to engage in homosexual acts would create

an unacceptable risk to the high standards of morale, good order

and discipline, and unit cohesion that are the essence of military

capability. 

6Although we agree with the Eleventh Circuit that the Lawrence Court

did not apply strict scrutiny, Lofton, 358 F.3d at 817, in our view, the

WITT v. DEP’T OF THE AIR FORCE 5861
539 U.S. 166, 179 (2003), the Court considered whether the

Constitution permits the government to forcibly administer

antipsychotic drugs to a mentally-ill defendant in order to render that defendant competent to stand trial. The Court held

that the defendant has a “significant constitutionally protected

liberty interest” at stake, so the drugs could be administered

forcibly “only if the treatment is medically appropriate, is

substantially unlikely to have side effects that may undermine

the fairness of the trial, and, taking account of less intrusive

alternatives, is necessary significantly to further important

governmental trial-related interests.” Id. at 178-80 (internal

quotation marks omitted). 

[13] Although the Court’s holding in Sell is specific to the

context of forcibly administering medication, the scrutiny

employed by the Court to reach that holding is instructive. See

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc) (holding that we are bound by the theory or reasoning

underlying a Supreme Court case, not just by its holding). The

Court recognized a “significant” liberty interest—the interest

“in avoiding the unwanted administration of antipsychotic

drugs”—and balanced that liberty interest against the “legitimate” and “important” state interest “in providing appropriate

medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others.”7

Sell, 539 U.S. at 178 (internal quotation marks omitted).

To balance those two interests, the Court required the state to

justify its intrusion into an individual’s recognized liberty

interest against forcible medication—just as Lawrence determined that the state had failed to “justify its intrusion into the

Eleventh Circuit failed to appreciate both the liberty interest recognized by

Lawrence and the heightened-scrutiny balancing employed by Lawrence.

7This inquiry is similar to intermediate scrutiny in equal protection

cases. See Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge, . . . classifications by gender must serve important

governmental objectives and must be substantially related to achievement

of those objectives.”). 

5862 WITT v. DEP’T OF THE AIR FORCE
personal and private life of the individual.” Lawrence, 539

U.S. at 578. 

The heightened scrutiny applied in Sell consisted of four

factors: First, a court must find that important governmental

interests are at stake. . . . 

Courts, however, must consider the facts of the

individual case in evaluating the Government’s interest . . . . Special circumstances may lessen the importance of that interest. . . . 

Second, the court must conclude that involuntary

medication will significantly further those concomitant state interests. . . . 

Third, the court must conclude that involuntary

medication is necessary to further those interests.

The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially

the same results. . . . 

Fourth, . . . the court must conclude that administration of the drugs is medically appropriate . . . . 

539 U.S. at 180-81. The fourth factor is specific to the medical context of Sell, but the first three factors apply equally

here. We thus take our direction from the Supreme Court and

adopt the first three heightened-scrutiny Sell factors as the

heightened scrutiny balancing analysis required under Lawrence. We hold that when the government attempts to intrude

upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the

intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words,

for the third factor, a less intrusive means must be unlikely to

achieve substantially the government’s interest. See also

WITT v. DEP’T OF THE AIR FORCE 5863
Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964) (“Even

though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more

narrowly achieved.” (internal quotation marks omitted)). 

[14] In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial. “This is the preferred

course of adjudication since it enables courts to avoid making

unnecessarily broad constitutional judgments.” City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985).

In Cleburne, the Court employed a “type of ‘active’ rational

basis review,” Pruitt, 963 F.2d at 1165-66, in requiring the

city to justify its zoning ordinance as applied to the specific

plaintiffs in that case. And Sell required courts to “consider

the facts of the individual case in evaluating the Government’s interest.” 539 U.S. at 180. Under this review, we must

determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification

exists for the application of the policy as applied to Major

Witt. This approach is necessary to give meaning to the

Supreme Court’s conclusion that “liberty gives substantial

protection to adult persons in deciding how to conduct their

private lives in matters pertaining to sex.” Lawrence, 539 U.S.

at 572. 

We also conclude that our holding in Beller, 632 F.2d 788,

that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.8

8Our observation in High Tech Gays v. Def. Ind. Security Clearance

Office, 895 F.2d 563, 572 (9th Cir. 1990), that “Beller has since been overruled by [Bowers v.] Hardwick,” does not end our Beller inquiry. Bowers

overruled Beller’s invocation of heightened scrutiny. See Bowers, 478

U.S. at 194-95 (rejecting heightened scrutiny for classifications based on

homosexuality); see also High Tech Gays, 895 F.2d at 572 (“Neither Beller nor Hatheway[ v. Sec’y of Army, 641 F.2d 1376 (9th Cir. 1981),] is

binding authority on us regarding heightened scrutiny for classifications

based on homosexuality.”). But Bowers did not necessarily alter Beller’s

holding that the regulation at issue survived heightened scrutiny. 

5864 WITT v. DEP’T OF THE AIR FORCE
In Beller, 632 F.2d at 807 n.19, we applied heightened

scrutiny because “[t]he kind of all-or-nothing substantive due

process approach . . . d[id] not, we think, reflect the complexity of the Court’s [due process] analysis.” We reasoned 

that substantive due process scrutiny of a government regulation involves a case-by-case balancing of

the nature of the individual interest allegedly

infringed, the importance of the government interests

furthered, the degree of infringement, and the sensitivity of the government entity responsible for the

regulation to more carefully tailored alternative

means of achieving its goals. 

Id. at 807. We recognized “that there [wa]s substantial academic comment which argue[d] that the choice to engage in

homosexual action is a personal decision entitled, at least in

some instances, to recognition as a fundamental right and to

full protection as an aspect of the individual’s right of privacy.” Id. at 809. But we held that “the importance of the government interests furthered . . . outweigh[ed] whatever

heightened solicitude is appropriate for consensual private

homosexual conduct.” Id. at 810. 

[15] Although the heightened scrutiny employed in Beller

was prescient of Lawrence, Sell, and the three factors that we

adopt today, in Beller we explicitly declined to perform an asapplied analysis. We acknowledged that, “[u]nder the analysis

described in our opinion, individual treatment in some circumstances might be required by substantive due process,

depending on the outcome of the balancing test.” Id. at 808

n.20. But we refused to apply individual treatment because of

“the relative impracticality at th[at] time of achieving the

Government’s goals by regulations which turn more precisely

on the facts of an individual case.” Id. at 810. Beller’s refusal

to perform an as-applied balancing test is clearly irreconcilable with the individualized balancing analysis required under

WITT v. DEP’T OF THE AIR FORCE 5865
Cleburne and Sell.

9 Beller’s heightened scrutiny analysis and

holding therefore have been effectively overruled by intervening Supreme Court authority.10 See Miller, 335 F.3d at 900

(“We hold that the issues decided by the higher court need not

be identical in order to be controlling. Rather, the relevant

court of last resort must have undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the

cases are clearly irreconcilable. . . . In future cases of such

clear irreconcilability, a three-judge panel of this court and

district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this

court as having been effectively overruled.”). 

Here, applying heightened scrutiny to DADT in light of

current Supreme Court precedents, it is clear that the government advances an important governmental interest. DADT

9Beller’s conclusion that individualized determination were “impractical” at that time has also since been placed into question by the Court of

Appeals for the Armed Forces’ decision in Marcum, where the court held

that the application of Lawrence must be addressed “in context and not

through a facial challenge.” 60 M.J. at 206. Although that court’s decision

does not bind our panel, it is telling that the Marcum court did not find it

“impractical” to consider particularized facts in each case. See Middendorf

v. Henry, 425 U.S. 25, 43 (1976) (noting that military courts’ judgments

“are normally entitled to great deference” when “[d]ealing with areas of

law peculiar to the military branches.”). 

10Other intervening Supreme Court decisions have also weakened the

rationale of Beller. In Pruitt, 963 F.2d at 1165, we noted that “one of the

justifications offered by the Navy in Beller was the tension between

known homosexuals and other members who despise/detest homosexuality.” (Internal quotation marks omitted.) We held that “[t]his justification

accepted in Beller . . . should not be given unexamined effect today as a

matter of law” because it was inconsistent with the Supreme Court’s decisions in Palmore v. Sidoti, 466 U.S. 429 (1984), and Cleburne, 473 U.S.

432, that “ ‘[p]rivate biases may be outside the reach of the law, but the

law cannot, directly or indirectly, give them effect.’ ” Pruitt, 963 F.2d at

1165 (quoting Palmore, 466 U.S. at 433). However, Pruitt noted that, in

Beller, “we held that there were several grounds on which the regulation

could be upheld,” Pruitt, 963 F.2d at 1164, only one of which was

impacted by Palmore and Cleburne, so Pruitt does not end our inquiry. 

5866 WITT v. DEP’T OF THE AIR FORCE
concerns the management of the military, and “judicial deference to . . . congressional exercise of authority is at its apogee

when legislative action under the congressional authority to

raise and support armies and make rules and regulations for

their governance is challenged.” Rostker v. Goldberg, 453

U.S. 57, 70 (1981). Notably, “deference does not mean abdication.” Id. “Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area

of military affairs . . . .” Weiss v. United States, 510 U.S. 163,

176 (1994). 

[16] However, it is unclear on the record before us whether

DADT, as applied to Major Witt, satisfies the second and

third factors. The Air Force attempts to justify the policy by

relying on congressional findings regarding “unit cohesion”

and the like, but that does not go to whether the application

of DADT specifically to Major Witt significantly furthers the

government’s interest and whether less intrusive means would

achieve substantially the government’s interest.11 Remand

therefore is required for the district court to develop the

record on Major Witt’s substantive due process claim. Only

then can DADT be measured against the appropriate constitutional standard.

IV

[17] We next turn to Major Witt’s Equal Protection Clause

claim. She argues that DADT violates equal protection

because the Air Force has a mandatory rule discharging those

who engage in homosexual activities but not those “whose

presence may also cause discomfort among other service

members,” such as child molesters. However, Philips clearly

11Indeed, the facts as alleged by Major Witt indicate the contrary. Major

Witt was a model officer whose sexual activities hundreds of miles away

from base did not affect her unit until the military initiated discharge proceedings under DADT and, even then, it was her suspension pursuant to

DADT, not her homosexuality, that damaged unit cohesion. 

WITT v. DEP’T OF THE AIR FORCE 5867
held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was

not disturbed by Lawrence, which declined to address equal

protection, see 539 U.S. at 574-75 (declining to reach the

equal protection argument and, instead, addressing “whether

Bowers itself ha[d] continuing validity”). We thus affirm the

district court’s dismissal of Major Witt’s equal protection

claims. 

V

The issues posed by this case might generate great concern

both from those who welcome Major Witt’s continued participation in the Air Force and from those who may oppose it.

Those issues must be, and have been, addressed in the first

instance by leaders of the military community and by those in

Congress with law-making responsibilities. All of Congress’s

laws must abide by the United States Constitution, however.

Taking direction from what the Supreme Court decided in

Lawrence and Sell, we hold that DADT, after Lawrence, must

satisfy an intermediate level of scrutiny under substantive due

process, an inquiry that requires facts not present on the

record before us. 

In light of the foregoing, we VACATE and REMAND the

district court’s judgment with regard to Major Witt’s substantive due process claim and procedural due process claim, and

AFFIRM with regard to the equal protection clause claim.

The parties shall bear their own costs on appeal. 

CANBY, Circuit Judge, concurring in part and dissenting in

part: 

The majority has written an opinion that is very praiseworthy as far as it goes. I concur in Parts I and II. I also concur

in the first portion of Part III, to the end of subdivision (1).

5868 WITT v. DEP’T OF THE AIR FORCE
Beyond that, I agree substantially with the majority’s discussion leading to the conclusion that the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), applied something more

rigorous than traditional rational basis review in striking down

Texas’s criminalization of sexual relations between members

of the same sex. Finally, I agree that the district court erred

in dismissing the complaint for failure to state a substantive

due process claim, and that we must remand for further proceedings. Unlike the majority, however, I would also reverse

the dismissal of the equal protection claim. But where I differ

most from the majority is in the level of scrutiny to be applied

to both claims. In my view, the so-called “Don’t Ask, Don’t

Tell” statute,1 10 U.S.C. § 654, must be subjected to strict

scrutiny. Under that standard, the Air Force must demonstrate

that the statute’s restriction of liberty, and its adverse classification of homosexuals, are “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301-02

(1993). 

Substantive Due Process

As the majority opinion correctly recognizes, the Supreme

Court’s opinion in Lawrence never unambiguously states

what standard of review it is applying. The Lawrence opinion

leaves no doubt at all, however, about the importance of the

right it is protecting. In discussing the flaws of Bowers v.

Hardwick, 478 U.S. 186 (1986), which it was overruling,

Lawrence explained: 

To say that the issue in Bowers was simply the right

to engage in certain sexual conduct demeans the

claim the individual put forward, just as it would

demean a married couple were it to be said marriage

is simply about the right to have sexual intercourse.

1Under the facts alleged in the complaint, the statute’s popular name

appears to be a misnomer as applied to Major Witt. She did not tell, but

the Air Force asked. 

WITT v. DEP’T OF THE AIR FORCE 5869
The laws involved in Bowers and here are, to be

sure, statutes that purport to do no more than prohibit

a particular sexual act. Their penalties and purposes,

though, have more far-reaching consequences,

touching upon the most private human conduct, sexual behavior, and in the most private of places, the

home. The statutes do seek to control a personal

relationship that, whether or not entitled to formal

recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against

attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent

injury to a person or abuse of an institution the law

protects. It suffices for us to acknowledge that adults

may choose to enter upon this relationship in the

confines of their homes and their own private lives

and still retain their dignity as free persons. When

sexuality finds overt expression in intimate conduct

with another person, the conduct can be but one element in a personal bond that is more enduring. The

liberty protected by the Constitution allows homosexual persons the right to make this choice. 

Lawrence, 539 U.S. at 567 (emphases added). Two points

shine forth from this passage and its context in Lawrence:

first, the right to choose to engage in private, consensual sexual relations with another adult is a human right of the first

order and, second, that right is firmly protected by the substantive guarantee of privacy—autonomy of the Due Process

Clause. Thus, even though the Court did not expressly characterize the right as “fundamental,” it certainly treated it as

such. It is this treatment, and the important individual values

of liberty it recognizes, that require strict scrutiny of governmental encroachment on that right. In my view, therefore,

Lawrence itself mandates strict scrutiny of the “Don’t Ask,

Don’t Tell” statute. 

5870 WITT v. DEP’T OF THE AIR FORCE
In order to apply strict scrutiny, however, we do not need

to satisfy ourselves that Lawrence commands or expressly

adopts that standard of review. We are not reviewing a state

criminal conviction, where we are forbidden by the Antiterrorism and Effective Death Penalty Act from applying a constitutional standard unless it has been determined by the

Supreme Court. See 28 U.S.C. § 2254(d)(1). In the present

context, it is enough that the question is an open one. As the

majority opinion recognizes, Lawrence avoids (carefully, it

seems) stating what standard of review the Court was applying. Certainly nothing in Lawrence can reasonably be read as

forbidding the application of strict scrutiny to statutes attaching severe consequences to homosexual behavior.2

 The question of the standard of scrutiny in this case is therefore an

open one, and we must address it according to our best understanding of the individual constitutional rights and governmental action involved.3

 For reasons that should already be

apparent from my quotation and discussion of Lawrence, I

have no difficulty concluding that the right to engage in

homosexual relationships and related private sexual conduct

is a personal right of a high constitutional order, and that the

“Don’t Ask, Don’t Tell” statute so penalizes that relationship

and conduct that it must be subjected to strict scrutiny. 

2

In that regard, Lawrence is to be contrasted with cases of gender discrimination, where the Supreme Court has expressly specified an intermediate standard of review. See Craig v. Boren, 429 U.S. 190, 197 (1976).

3For reasons explained in the following section on equal protection, I do

not regard our earlier precedents applying lesser standards of scrutiny to

military discrimination against homosexuals as binding after Lawrence.

See, e.g., Beller v. Middendorf, 632 F.2d 788, 812 (9th Cir. 1980) (upholding Navy policy of discharging homosexuals even though regulation is

“perhaps broader than necessary”); Holmes v. Cal. Army Nat’l Guard, 124

F.3d 1126, 1132-36 (9th Cir. 1997) (upholding “Don’t Ask, Don’t Tell”

policy under equal protection rational basis review); Philips v. Perry, 106

F.3d 1420, 1425-29 (9th Cir. 1997) (same). 

WITT v. DEP’T OF THE AIR FORCE 5871
Equal Protection 

Major Witt presented an equal protection claim to the district court, but acknowledges here that such a claim was

rejected by our court in Philips v. Perry, 106 F.3d 1420 (9th

Cir. 1997). Although she does not pursue it before our threejudge panel, she does preserve her right to assert the claim in

the event she seeks en banc review of our decision; she has

not abandoned the claim.4

I do not believe that Philips ties our hands. Philips applied

rational basis review to an equal protection attack on the

“Don’t Ask, Don’t Tell” policy of the Navy. It did so on the

authority of our earlier decision in High Tech Gays v. Defense

Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.

1990). See Philips, 106 F.3d at 1425. High Tech Gays, however, was based on the proposition that it would be inappropriate to apply strict scrutiny to classifications targeting

homosexuals when the Supreme Court had held in Bowers

that homosexual conduct could be made a crime. See High

Tech Gays, 895 F.2d at 571 (“[I]f there is no fundamental

right to engage in homosexual sodomy . . . see [Bowers v.]

Hardwick, . . . it would be incongruous . . . to find a fundamental right of homosexual conduct under the equal protection component of the Due Process Clause of the Fifth

Amendment.”). Because Lawrence unequivocally overruled

Bowers, it “undercut the theory [and] reasoning underlying”

High Tech Gays and Philips “in such a way that the cases are

4Major Witt does urge upon us a different kind of equal protection

claim. She contends that the Air Force violates equal protection because

it requires automatic discharge of sexually active homosexuals on the

ground that they are offensive to some members of a military unit, while

others equally offensive, such as child molesters, are not categorically subject to discharge. See AFI 36-3209, ¶ 2.29.10. Like the majority, I find it

unnecessary to address this argument. I also conclude that it would accomplish too little to establish that persons availing themselves of their constitutional right to intimate homosexual relations should be treated at least

as well as child molesters. 

5872 WITT v. DEP’T OF THE AIR FORCE
clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc). I am therefore convinced that Philips is no longer controlling.5

An equal protection analysis applying strict scrutiny to the

“Don’t Ask, Don’t Tell statute is accordingly open to us.

There are two different approaches to strict scrutiny under

equal protection analysis, and both should be followed in this

case. 

The most direct path to strict scrutiny of the statute under

the equal protection principle is to hold that classifications

discriminating against homosexuals are “suspect,” like classifications based on race. See Loving v. Virginia, 388 U.S. 1, 11

(1967) (subjecting race-based miscegenation statute to strict

scrutiny under the Equal Protection Clause). I have long been

convinced that classifications against homosexuals are suspect

in the equal protection sense, but I was unable to persuade a

majority of my colleagues to embark on en banc review to

establish that proposition. See High Tech Gays v. Defense

Industrial Security Clearance Office, 909 F.2d at 376-80

(1990) (Canby, J., dissenting from denial of rehearing en

banc). As I have already explained, however, the overruling

of Bowers by Lawrence has undermined High Tech Gays. We

accordingly are free to revisit the question whether the

adverse classification of homosexuals is “suspect” under

equal protection analysis. My reasons for concluding that

such classifications are suspect are fully set out in my dissent

from denial of en banc review in High Tech Gays, and I will

not belabor the matter here. Suffice it to say that homosexuals

have “experienced a history of purposeful unequal treatment

[and] been subjected to unique disabilities on the basis of ste5

In Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126, 1132 (9th Cir.

1997), we also applied rational basis review to reject an equal protection

challenge to a component of the “Don’t Ask, Don’t Tell” policy, relying

on Philips and High Tech Gays. For the reasons just discussed, Lawrence’s overruling of Bowers undermines Holmes as well. 

WITT v. DEP’T OF THE AIR FORCE 5873
reotyped characteristics not truly indicative of their abilities.”

Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (internal quotation marks omitted). They also “exhibit obvious,

immutable, or distinguishing characteristics that define them

as a discrete group; and they are [ ] a minority.” Lyng v. Castillo, 477 U.S. 635, 638 (1986). In short, they are a group

deserving of protection against the prejudices and power of an

often-antagonistic majority. 

The Supreme Court’s decision in Romer v. Evans, 517 U.S.

620 (1996), is not a barrier to a suspect classification, strict

scrutiny approach. In that case, the Court struck down a Colorado constitutional provision prohibiting, among other things,

any anti-discrimination legislation protecting homosexuals.

Id. at 623-24. The Supreme Court noted that most laws

involve a classification and that, if no fundamental right or

suspect class is involved, statutes are subject only to rational

basis review. Id. at 631. The Court then stated that the Colorado provision 

fails, indeed defies, even this conventional inquiry.

First, the amendment has the peculiar property of

imposing a broad and undifferentiated disability on

a single named group, an exceptional and, as we

shall explain, invalid form of legislation. 

Id. at 632 (emphasis added). Thus the Court had no need to

address whether homosexuals constituted a suspect class

because the Colorado provision failed “even” rational basis

review. That ruling does not negate the application of higher

levels of scrutiny on similar classifications. Indeed, the strong

language of Romer suggests that the invidiousness of the legislation would have supported any standard of review as a

path to its invalidation. Romer, like Lawrence, does not forbid

the application of strict scrutiny, even though it may have

found that level of scrutiny unnecessary to invalidate the legislation before the Court in that case. 

5874 WITT v. DEP’T OF THE AIR FORCE
In addition to the avenue of a suspect classification, there

is another path to strict scrutiny under equal protection analysis. Classifications that impinge on a fundamental right are

subject to strict scrutiny when challenged as a violation of

equal protection. See, e.g., Dunn v. Blumstein, 405 U.S. 330,

337-39 (1972). As I have already explained, Lawrence effectively establishes a fundamental right without so labeling it.

At the very least, Lawrence leaves the question open, to permit us to recognize the fundamental right to homosexual relations as I have already insisted we must. Even though that

right justifies strict scrutiny under a theory of substantive due

process, there are good reasons for adding an equal protection

analysis in this case. It is true that, in Lawrence, the Supreme

Court elected not to employ an equal protection theory. 539

U.S. at 574-75. It recognized, however, that equal protection

provided a “tenable” basis for declaring the statute invalid,

and conceded that a decision recognizing a liberty interest in

certain conduct advanced the cause of equality as well as due

process. Id. at 575. The reason why the Court in Lawrence did

not employ an equal protection analysis was itself protective.

The Court stated that it would not sufficiently establish the

right to intimate homosexual relations if only equal protection

were invoked, because a state might frustrate the right by

denying heterosexuals as well as homosexuals the right to

non-marital sexual relations. See id.

The danger of an end-run remedy of equal treatment is not

severe in our case, however. I doubt that the armed services

are likely to respond to an invalidation of the “Don’t Ask,

Don’t Tell” statute as a violation of equal protection by

decreeing the automatic discharge of any member, heterosexual or homosexual, who is found to have engaged in sexual

relations outside of marriage. In any event, we can guard

against any such result by retaining our substantive due process analysis along with an equal protection approach. 

The reason for including an equal protection analysis is that

there is a very clear element of discrimination in the whole

WITT v. DEP’T OF THE AIR FORCE 5875
“Don’t Ask, Don’t Tell” apparatus, and an equal protection

analysis focuses the inquiry sharply on a question that should

not be ignored: what compelling interest of the Air Force is

narrowly served by discharging homosexuals but not others

who engage in sexual relations privately off duty, off base,

and with persons unconnected to the military? It is no answer

to such a question that the known presence of a sexually

active homosexual in a military unit necessarily creates sexual

tensions (if indeed that could be shown), unless it were also

demonstrated that the presence of heterosexuals in a military

unit created no comparable tensions. It is also not a sufficient

answer that many military personnel are biased against homosexuals. See Pruitt v. Cheney, 963 F.2d 1160, 1165 (9th Cir.

1992); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984)

(“The Constitution cannot control such prejudices but neither

can it tolerate them. Private biases may be outside the reach

of the law, but the law cannot, directly or indirectly, give

them effect.”); Romer, 517 U.S. at 634-35. There are other

requirements of narrow tailoring that would apply during further proceedings applying strict scrutiny, but the point now is

that part of the inquiry should address the clear discrimination

between homosexuals and heterosexuals, and determine

whether that discrimination is necessary to serve a compelling

governmental interest and sweeps no more broadly than necessary. 

Order of Inquiry in Further Proceedings

The inquiry on remand should focus first on the Air Force’s

justification for its impingement on the right to private intimate sexual relations and the compelling nature of any interest that is served by that measure. The Air Force should be

required to identify a compelling interest with sufficient specificity so that the relation between the “Don’t Ask, Don’t

Tell” statute and that policy can be evaluated. It is difficult to

accomplish that goal if the compelling interest is as broadly

stated as “management of the military” or, say, “winning

wars.” Moreover, under strict scrutiny, it is not enough that

5876 WITT v. DEP’T OF THE AIR FORCE
the interest be merely “served” by the challenged legislation;

the legislation must be necessary to that purpose, and must

sweep no more broadly than is essential to serve the governmental purpose. See Dunn, 405 U.S at 345-46, 351-52. 

Thus, as a matter of due process, the Air Force can be

required to show why there is a compelling need to discharge

homosexuals who have been sexually active outside of their

duty station with persons unconnected to the military and why

the measure it has adopted is narrowly tailored to the satisfaction of that compelling need. As a matter of equal protection,

the Air Force can be asked to show what compelling need is

narrowly served by treating homosexuals who are sexually

active off duty and outside the military context differently

from heterosexuals who are sexually active off duty and outside the military context. These requirements are case-specific

in that they reflect the alleged facts that Major Witt conducted

all of her relations with her female partner off-base, and her

partner was alleged not to be in or employed by the military.

If the Air Force cannot meet these requirements, the statute

must be invalidated in such applications. 

There are clear advantages to addressing the Air Force’s

justifications first, before any inquiry into the personal characteristics and situation of Major Witt in her unit. First,

requiring the Air Force to make the requisite showing as a

threshold matter may end the case. 

Second, the inquiry directed toward the Air Force is less

potentially disruptive than a focus on Major Witt herself and,

particularly, the allegedly favorable attitude toward her on the

part of other members of her unit. To require unit members

to testify or submit affidavits concerning the degree to which

they do or do not consider themselves adversely affected by

the presence of a known, sexually active homosexual, may

WITT v. DEP’T OF THE AIR FORCE 5877
constitute a distraction from regular duties. It is better to

employ such an inquiry only as a last resort.6

Finally, requiring the Air Force to justify the application of

the statute to a generic service member who carries on a

homosexual relationship and intimate conduct away from the

duty station and its personnel provides more protection of the

constitutional right set forth in Lawrence. Because the right to

choose to engage in private, intimate sexual conduct is a constitutional right of a high order, it must be protected not just

for the outstanding service member like Major Witt, but also

for the run-of-the-mill airman or soldier. It is thus the general

application of the statute to the generic service member that

the Air Force must be required to justify. In Lawrence, after

all, the Supreme Court struck down the statute as applied to

anyone engaging in homosexual conduct; it did not find it

necessary or relevant to inquire into whether the individual

conduct of which the petitioners had been convicted was more

or less offensive to the interests of the State under the circumstances of its occurrence. 

Conclusion 

The majority opinion represents a conscientious effort to

reach a just result in this case, and I agree with much of its

analysis. I conclude, however, that the Air Force must demon6For this reason, even if I were to accept the majority’s standard of scrutiny, I would modify its remand instructions now directed to determining

whether “the application of DADT specifically to Major Witt significantly

furthers the government’s interest . . . .” Supra p. 5867. Further proceedings should begin by requiring the Air Force to show what important governmental interest is significantly furthered by the statute. The only facts

concerning Major Witt that need to be developed at that point are that her

homosexual relationship was carried on off-duty, away from military

premises, with a person unconnected to the military. The Air Force must

then demonstrate why it is necessary to apply the statute to a service member in those circumstances. Further details of Major Witt’s individual circumstances would best be left to the end, and may be unnecessary. 

5878 WITT v. DEP’T OF THE AIR FORCE
strate that the “Don’t Ask, Don’t Tell” statute meets the

requirements of strict scrutiny—that it is necessary to serve a

compelling governmental interest and that it sweeps no more

broadly than necessary. I also conclude that the Air Force

must be required to do so for purposes of both substantive due

process and equal protection. I therefore respectfully dissent

in part from the majority opinion.

WITT v. DEP’T OF THE AIR FORCE 5879