Alaska Employment Law

In a major opinion issued this morning, the 9th Circuit has held that Lawrence v. Texas, 539 US 558 (2003), requires the court to apply “heightened scrutiny” to governmental attempts to regulate “private consensual homosexual conduct.”  The Court, accordingly, revived a servicemember’s Substantive Due Process challenge to the Don’t Ask, Don’t Tell policy of the U. S. Air Force, and remanded for application of the heightened stadnard on an “as applied” basis.   Pre-Lawrence opinions from the 9th Circuit had upheld DADT.  The Court held that Lawrence and Sell v. U.S., 539 U.S. 168 (2003), compel rejection of the rational basis test that the circuit had used in earlier DADT challenges.  The 9th Circuit is apparently the first circuit to rule that Lawrence requires heightened scrutiny.

Witt v. Department of the Air Force, 2008 WL _______ (9th Cir. May 21, 2008)

Update: Eugene Volokh, Dale Carpenter, and Orin Kerr have detailed critiques of Witt v. Department at Volokh Conspiracy.  (If I were marooned on an electronic atoll, Volokh Conspiracy would be one of the five blogs, legal or oherwise, that I would pick to read daily.)