The recent Ninth Circuit opinion on “Don’t Ask, Don’t Tell” has this incorrect passage:
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.
The Supreme Court didn’t mention Romer in Lawrence, eh?
Here is a quote from Justice Kennedy’s majority opinion in Lawrence:
The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.
Thanks to Ed Whelan for noticing that failing of the Ninth Circuit opinion.
By the way, in my first post on the Ninth Circuit decision, I wondered how the L.A. Times would describe the judges who decided the case. Would readers be told that all three judges are Democrat appointees?
It’s even worse than that. I have seen no evidence that the legal titans at the L.A. Times even realize this case was decided. A search for “Witt” or “Don’t Ask, Don’t Tell” in the paper’s search engine reveals no relevant articles. This despite the fact that the case was covered by the New York Times, the Seattle Times, and the Seattle Post-Intellligencer, among others. But the L.A. Times seems blissfully unaware of the case.