Two days ago, a Ninth Circuit panel ruled that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the statute—colloquially known as “Don’t Ask, Don’t Tell”—governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” (This being the Ninth Circuit, the dissenter would have gone further and required strict scrutiny.)

I have a lot of sympathy for anyone forced to try to make sense of Justice Kennedy’s majority opinion in Lawrence, which I described in this Yale Law Journal (Pocket Part) essay as “unfettered moral philosophizing” that “reads like a cruel parody of the modern make-it-up-as-you-go-along judicial decision-making that hides behind the euphemism of the ‘living Constitution.’” But there’s strong evidence that the Ninth Circuit panel did not even carefully read the opinion. Specifically, the panel asserts that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer. How could the panel judges and their law clerks have failed to take note of this? And what does that say about the quality of their decisionmaking?

On the Volokh Conspiracy, Eugene Volokh has separately (in point 2 here) faulted the panel for the larger failure of neglecting even to consider whether the military context calls for a lower standard of scrutiny.