Don’t Ask, Don’t Tell to High Court?

by Jonathan H. Adler

Today the U.S. Court of Appeals for the First Circuit rejected a constitutional challenge to the military’s “Don’t Ask, Don’t Tell” policy.  Federal courts had rejected such challenges before, but not since the Supreme Court’s decision in Lawrence v. Texas invalidating a Texas statute prohibiting homosexual sodomy. This could increase the chance that Supreme Court hears a challenge to the policy, as last month, the U.S. Court of Appeals for the Ninth Circuit held DADT should be subject to heightened scrutiny, and suggested the policy might be unconstitutional.  This only creates a “soft” circuit split, however, as Eugene Volokh explains here, because while the Ninth Circuit did not affirm the district court’s dismissal of the suit, it remanded the case for further proceedings rather than striking down the policy outright.