Cook v. Gates
Encyclopedia
Thomas Cook v. Robert Gates, 528 F.3d 42 (1st Cir. 2008) is a decision on July 9, 2008, of the United States Court of Appeals for the First Circuit
that upheld the "Don't ask, Don't tell
" law (Title 10, Section 654) against due process and equal protection Fifth Amendment
challenges and a free speech challenge under the First Amendment
, and which found that no earlier Supreme Court decision held that sexual orientation is a suspect or quasi-suspect classification.
, 539 U.S. 558 (2003), the Supreme Court case striking down convictions of Texas
's sodomy
law, to determine the appropriate standard of scrutiny. They held that Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defied either the rational basis or strict scrutiny
level." In reaching this holding, the Court noted that Lawrence relied on the following cases- Griswold v. Connecticut
, Eisenstadt v. Baird
, Roe v. Wade
, Carey v. Population Services International
, and Planned Parenthood of Southeastern Pennsylvania v. Casey. Second, it noted that the language of Lawrence "supports the recognition of a protected liberty interest". third, it noted that Lawrence relied on Justice Stevens's dissent in Bowers v. Hardwick
, 478 U.S. 186 at 214 (1986) (J. Stevens, dissenting)., stating that "it is impossible to read Lawrence as declining to recognize a protected liberty interest without ignoring the Court's
statement that Justice Stevens' Bowers dissent was controlling" And fourth, it noted that if Lawrence had applied traditional rational basis review, "the convictions under the Texas statute would have been sustained", on the basis that Lawrence can "only be squared with the Supreme Court's acknowledgment of morality as a rational basis by concluding that a protected liberty interest was at stake, and therefore a rational basis for the law was not sufficient." It thus rejected the district court's view that Lawrence applied rational basis.
Balancing "the strength of the [government's] asserted interest[s] ... against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied", the Court evaluated the plaintiffs' facial due process claims and rejected them, on the basis that "the [Supreme] Court made it abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion" and that the "Act includes such other types of sexual activity. The Act provides for the separation of a service person who engages in a public homosexual act or who coerces another person to engage in a homosexual act", which are "expressly excluded from the liberty interest recognized by Lawrence."
Turning to the plaintiffs' as-applied challenges, the Court recognized that the "Act, for example, could cover homosexual conduct occurring off base between two consenting adults in the privacy of their home." They also recognized that they were "reviewing an
exercise of Congressional judgment in the area of military affairs" and that the "deferential approach courts take when doing so is well established." Because "Congress [had] articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion [was] simply not warranted", and the Court rejected the as-applied challenges.
[v. Evans, 517 U.S. 620 (1996)], by its own terms, applied rational basis review", that "Romer nowhere suggested that the Court recognized a new suspect class", and that the "Lawrence Court explicitly declined to base its ruling on equal protection principles, even though that issue was presented". Because "Congress has put forward a non-animus based explanation for its decision to pass the Act", the Court rejected the equal protection claims.
about one’s status as a homosexual, it would constitute a contentbased speech restriction subject to strict scrutiny" and that "the availability of an administrative remedy does not defeat a First Amendment claim that the government is systematically applying the Act in such a way that it unconstitutionally burdens protected speech"
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
that upheld the "Don't ask, Don't tell
Don't ask, don't tell
"Don't ask, don't tell" was the official United States policy on homosexuals serving in the military from December 21, 1993 to September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while...
" law (Title 10, Section 654) against due process and equal protection Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
challenges and a free speech challenge under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, and which found that no earlier Supreme Court decision held that sexual orientation is a suspect or quasi-suspect classification.
Case History
Seven former members of the military discharged under the law filed suit in the U.S. District Court for the District of Massachusetts asking for an injunction for readmission into the military and prohibiting further enforcement of the law. The government filed for a motion to dismiss for failure to state a claim upon whichrelief can be granted. On April 24, 2006, the court granted the government's motion, upholding the act under rational basis review.Due Process and Lawrence
In evaluating the substantive due process claim, the Court first looked over Lawrence v. TexasLawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, 539 U.S. 558 (2003), the Supreme Court case striking down convictions of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
's sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
law, to determine the appropriate standard of scrutiny. They held that Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defied either the rational basis or strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
level." In reaching this holding, the Court noted that Lawrence relied on the following cases- Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
, Eisenstadt v. Baird
Eisenstadt v. Baird
Eisenstadt v. Baird, , was an important United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right of unmarried couples to engage in potentially nonprocreative sexual intercourse .The...
, Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, Carey v. Population Services International
Carey v. Population Services International
Carey v Population services international is a United States Supreme Court case. The court held that it was unconstitutional to prohibit the sale of contraceptives to minors, the advertisements or displays of contraceptives, and the sale of contraceptives to adults except through a pharmacist...
, and Planned Parenthood of Southeastern Pennsylvania v. Casey. Second, it noted that the language of Lawrence "supports the recognition of a protected liberty interest". third, it noted that Lawrence relied on Justice Stevens's dissent in Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, 478 U.S. 186 at 214 (1986) (J. Stevens, dissenting)., stating that "it is impossible to read Lawrence as declining to recognize a protected liberty interest without ignoring the Court's
statement that Justice Stevens' Bowers dissent was controlling" And fourth, it noted that if Lawrence had applied traditional rational basis review, "the convictions under the Texas statute would have been sustained", on the basis that Lawrence can "only be squared with the Supreme Court's acknowledgment of morality as a rational basis by concluding that a protected liberty interest was at stake, and therefore a rational basis for the law was not sufficient." It thus rejected the district court's view that Lawrence applied rational basis.
Balancing "the strength of the [government's] asserted interest[s] ... against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied", the Court evaluated the plaintiffs' facial due process claims and rejected them, on the basis that "the [Supreme] Court made it abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion" and that the "Act includes such other types of sexual activity. The Act provides for the separation of a service person who engages in a public homosexual act or who coerces another person to engage in a homosexual act", which are "expressly excluded from the liberty interest recognized by Lawrence."
Turning to the plaintiffs' as-applied challenges, the Court recognized that the "Act, for example, could cover homosexual conduct occurring off base between two consenting adults in the privacy of their home." They also recognized that they were "reviewing an
exercise of Congressional judgment in the area of military affairs" and that the "deferential approach courts take when doing so is well established." Because "Congress [had] articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion [was] simply not warranted", and the Court rejected the as-applied challenges.
Equal Protection and suspect classification
The Court then decided the issue of whether earlier Supreme Court decisions held that sexual orientation was a suspect classification. In rejecting plaintiffs' arguments in favor of that, they noted that "RomerRomer v. Evans
Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...
[v. Evans, 517 U.S. 620 (1996)], by its own terms, applied rational basis review", that "Romer nowhere suggested that the Court recognized a new suspect class", and that the "Lawrence Court explicitly declined to base its ruling on equal protection principles, even though that issue was presented". Because "Congress has put forward a non-animus based explanation for its decision to pass the Act", the Court rejected the equal protection claims.
First Amendment
In addressing the First Amendment claim, the Court noted that their "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society." and because it was "thus aimed at eliminating certain conduct or the possibility of certain conduct from occurring in the military environment, not at restricting speech", the First Amendment claim was rejected.Dissent
Judge Saris concurred with the majority regarding due process and equal protection, while dissenting with the rejection of the First Amendment challenge, because "if the Act were applied to punish statementsabout one’s status as a homosexual, it would constitute a contentbased speech restriction subject to strict scrutiny" and that "the availability of an administrative remedy does not defeat a First Amendment claim that the government is systematically applying the Act in such a way that it unconstitutionally burdens protected speech"