                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARGARET WITT, Major,                      
                Plaintiff-Appellant,
                v.                                No. 06-35644
DEPARTMENT OF THE AIR FORCE;                        D.C. No.
ROBERT M. GATES, Secretary of                   CV-06-05195-RBL
Defense;* MICHAEL B. DONLEY,                   Western District of
Secretary, Department of the Air                  Washington,
Force;** MARY L. WALKER,                             Tacoma
Colonel, Commander, 446th
                                                    ORDER
Aeromedical Evacuation Squadron,
McChord AFB,
             Defendants-Appellees.
                                           
                     Filed December 4, 2008

      Before: William C. Canby, Senior Circuit Judge,
   Susan P. Graber, and Ronald M. Gould, Circuit Judges.

                             Order;
                 Dissent by Judge O’Scannlain;
                  Dissent by Judge Kleinfeld;
                Dissent by Chief Judge Kozinski




  *Robert M. Gates is substituted for his predecessor Donald H. Rumsfeld
as Secretary of Defense. Fed. R. App. P. 43(c)(2).
  **Michael B. Donley is substituted for his predecessor, Michael W.
Wynne, as Secretary of the Air Force. Fed. R. App. P. 43(c)(2).

                                15897
15898           WITT v. DEP’T OF THE AIR FORCE
                           ORDER

  The panel voted to deny the Appellees’ Petition for Rehear-
ing.

   The full court has been advised of the Petition for Rehear-
ing En Banc. A judge of the court requested a vote on whether
to rehear the case en banc. However, the en banc call failed
to receive a majority of votes of the nonrecused active judges
in favor of en banc consideration. Fed. R. App. P. 35.

  The Appellees’ Petition for Rehearing and the Petition for
Rehearing En Banc are DENIED.



O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by BEA, M. SMITH, JR., and N. R.
SMITH, Circuit Judges:

   This is the first case in which a federal appellate court has
allowed a member of the armed services to bring a substantive
due process challenge to the congressionally enacted “Don’t
Ask, Don’t Tell” homosexual personnel policy for the mili-
tary. With respect, I believe that our three-judge panel has
erroneously reversed a district court order dismissing such
suit and remanded for further fact-finding under an unsanc-
tioned and malleable standard of review.

   This case is far more than a harmless remand. Witt v.
Department of the Air Force, 527 F.3d 806 (9th Cir. 2008),
claims to rest its decision on the Supreme Court’s opinion in
Lawrence v. Texas, 539 U.S. 558 (2003), which decriminal-
ized private and consensual homosexual conduct. Instead,
however, Witt contravenes Supreme Court precedent, includ-
ing Lawrence, in the area of substantive due process, creates
a circuit split, and stretches the judicial power beyond its con-
stitutional mandate. At the end of the day, Witt creates a
                     WITT v. DEP’T OF THE AIR FORCE                     15899
forum in the judicial branch (rather than the political
branches) to challenge the validity and the particular applica-
tion of “Don’t Ask, Don’t Tell,” even though such policy
infringes no constitutional right. Since today’s order denies
rehearing of this problematic case by an en banc court, I must
respectfully dissent.

                                       I

                                       A

   Unlike Lawrence, this is not a criminal case. Major Marga-
ret Witt, an Air Force reservist nurse, was suspended from the
Air Force when a military board found, after a two-day hear-
ing, that she “had engaged in homosexual acts and had stated
that she was a homosexual in violation of [10 U.S.C. § 654,
commonly known as the ‘Don’t Ask, Don’t Tell’ policy].”1
Witt, 527 F.3d at 810. The military board recommended her
discharge and the Secretary of the Air Force has so ordered,
but it is unclear whether she has been formally discharged.
See id. at 812. Major Witt admitted that she had “a committed
and long-term relationship” with “another woman from July
1997 through August 2003.” Id. at 809. As the panel noted,
“Major Witt’s partner was never a member nor a civilian
employee of any branch of the armed forces, and Major Witt
states that she never had sexual relations while on duty or
  1
    The statute provides, in relevant part, that “[a] member of the armed
forces shall be separated from the armed forces . . . if one or more of the
following findings is made[:]
      (1) [t]hat the member has engaged in, attempted to engage in, or
      solicited another to engage in a homosexual act or acts . . .
      (2) [t]hat the member has stated that he or she is a homosexual
      or bisexual, or words to that effect, unless there is a further find-
      ing . . . that the member has demonstrated that he or she is not a
      person who engages in, attempts to engage in, has a propensity
      to engage in, or intends to engage in homosexual acts.”
10 U.S.C. § 654(b).
15900           WITT v. DEP’T OF THE AIR FORCE
while on the grounds of any Air Force base.” Id. The two
women lived together in Spokane, Washington, some 250
miles from the base where Major Witt was stationed. Id. at
809-10. Major Witt challenged her termination as a violation
of her constitutional rights under the Equal Protection Clause,
the procedural Due Process Clause, and the substantive Due
Process Clause. Id. at 809. The district court granted the Air
Force’s motion to dismiss Major Witt’s lawsuit. Id.

                               B

   On appeal, a panel of this court upheld the dismissal of
both the procedural due process claim and the equal protec-
tion claim, the former on standing grounds and the latter on
the merits. However, the Witt panel went on to hold that there
might be a viable substantive due process claim based on
Lawrence and remanded the case back to the district court “to
develop the record.” Id. at 821. Although previous Ninth Cir-
cuit decisions had found “Don’t Ask, Don’t Tell” constitu-
tional under rational basis review, see, e.g., Philips v. Perry,
106 F.3d 1420, 1425-26 (9th Cir. 1997), the panel presumed,
without any analysis or explanation, that Lawrence changed
the equation.

   After careful but, I respectfully submit, misguided consid-
eration, the panel concluded that Lawrence introduced a new
requirement of some kind of heightened scrutiny. The Law-
rence opinion itself does not prescribe such scrutiny or even
mention that it applied heightened scrutiny of any kind. Lack-
ing a standard of review, the panel imported a multi-factor
balancing test from another Supreme Court case, Sell v.
United States, 539 U.S. 166 (2003), that it thought enunciated
a standard of review appropriate to Lawrence. In Sell, a case
involving the government’s forcible administration of anti-
psychotic drugs to a mentally ill defendant, the Court did
develop a four-factor test, but only on the basis of prior cases
with similar facts. See 539 U.S. at 179-181 (deriving a stan-
dard from Washington v. Harper, 494 U.S. 210, 213 (1990),
                   WITT v. DEP’T OF THE AIR FORCE                    15901
which considered “whether a judicial hearing is required
before the State may treat a mentally ill prisoner with anti-
psychotic drugs against his will” and Riggins v. Nevada, 504
U.S. 127, 135-37 (1992), which reversed State convictions
because the defendant was unconstitutionally forced to take
an anti-psychotic drug during trial). The Sell Court explicitly
tied its test to those cases where the government had “invol-
untarily . . . administer[ed] antipsychotic drugs to a mentally
ill defendant facing serious criminal charges in order to render
that defendant competent to stand trial.” Id. at 179.2

   Notwithstanding the inapposite origin of the Sell test, the
Witt panel adapted it to its own purposes. In Witt’s modified
version, the inquiry requires “that when the government
attempts to intrude upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified
in Lawrence,3 the government must advance an important
governmental interest, the intrusion must significantly further
that interest, and the intrusion must be necessary to further
that interest. . . . In addition, we hold that this heightened
scrutiny analysis is as-applied rather than facial.” Witt, 527
F.3d at 819.4

   Applying this novel standard, the panel remanded for fur-
ther fact-finding to determine whether “Don’t Ask, Don’t
Tell” met the requirements of the modified Sell test with
  2
     The formulation of the balancing test from Sell makes its origin clear.
First, “a court must find that important governmental interests are at
stake”; second, “the court must conclude that involuntary medication will
significantly further those concomitant state interests”; third, “the court
must conclude that involuntary medication is necessary to further those
interests”; finally, “the court must conclude that administration of the
drugs is medically appropriate, i.e., in the patient’s best medical interest
in light of his medical condition.” 539 U.S. at 180-81 (emphases omitted).
   3
     I note that the panel never specified what these rights are.
   4
     The government interest at issue with respect to “Don’t Ask, Don’t
Tell,” incidentally, is the “high standards of morale, good order and disci-
pline, and unit cohesion” in the armed forces. 10 U.S.C. § 654(a)(15).
15902               WITT v. DEP’T OF THE AIR FORCE
respect to Major Witt’s particular circumstances. The Witt
opinion leaves no doubt about how fact-specific this inquiry
is to be. The panel ordered the trial court on remand to deter-
mine “whether the application of [‘Don’t Ask, Don’t Tell’]
specifically to Major Witt significantly furthers the govern-
ment’s interest and whether less intrusive means would
achieve substantially the government’s interest.” Id. at 821
(emphasis added). Witt remains the only federal appellate
decision to subject “Don’t Ask, Don’t Tell” to such invasive
review.5 It seems to me that if a court of appeals is to require
a district court to second-guess the considered policy decision
of Congress as applied to a particular military officer, it must
do so with the clearest constitutional command and upon the
most solid Supreme Court precedent. But, as I explain below,
no such clarity, no such solidity, underlie Witt.

                                     II

   My first objection to Witt is to its application of Lawrence
in the first place. The panel presumed, without any analysis,
that Lawrence controlled this case. The Witt court thought that
its first task with respect to the substantive due process claim
was to “determine the proper level of scrutiny to apply.” Id.
at 813.6 In other words, the panel ignored the necessary
threshold question: “is this a Lawrence case at all?” Its
assumption—that Witt is a Lawrence case—was wrong, and
  5
     Although the First Circuit, in Cook v. Gates, 528 F.3d 42 (1st Cir.
2008), concluded that Lawrence required some kind of heightened scru-
tiny, it neither adopted the balancing test that Witt created nor remanded
to the district court for a fact-bound, as-applied investigation. Instead, it
“[a]cknowledg[ed] the government interest,” as well as the congressional
record of careful consideration, and held, in light of “our deferential pos-
ture,” that “as-applied challenges to [‘Don’t Ask, Don’t Tell’] must fail.”
Id. at 60. This leaves Witt quite alone on what I believe is a rather wobbly
limb.
   6
     I put aside, for the moment, the extent to which, if at all, Lawrence did
anything more than conclude that a particular kind of criminal statute vio-
lates the rational basis test.
                WITT v. DEP’T OF THE AIR FORCE             15903
that mistake caused the panel both to misapply Lawrence and
to contradict the well-settled substantive due process prece-
dents of the Supreme Court.

                               A

   In Lawrence, the Supreme Court struck down a Texas crim-
inal statute penalizing certain homosexual conduct. It over-
ruled Bowers v. Hardwick, 478 U.S. 186 (1986), which
upheld a similar Georgia law under the rational basis test. Cit-
ing “broad statements of the substantive reach of liberty under
the Due Process Clause [of the Fourteenth Amendment] in
earlier cases,” Lawrence, 539 U.S. at 565, the Court began by
summarizing its objection to statutes criminalizing the con-
sensual sexual activity at issue:

    Their penalties and purposes . . . touch[ ] upon the
    most private human conduct, sexual behavior, and in
    the most private of places, the home. The statutes . . .
    seek to control a personal relationship that, whether
    or not entitled to formal recognition in the law, is
    within the liberty of persons to choose without being
    punished as criminals.

Id. at 567 (emphasis added).

   The Lawrence Court then explained its decision to overrule
Bowers. It called into question what it saw as two critical pil-
lars of that decision: the historical prevalence and continuing
vitality of the moral condemnation of common homosexual
conduct. Id. at 568-72 (noting first that “there is no longstand-
ing history in this country of laws directed at homosexual
conduct as a distinct matter” and second that there is “an
emerging awareness [in the past half century] that liberty
gives substantial protection to adult persons in deciding how
to conduct their private lives in matters pertaining to sex”).
The Court approvingly referenced the argument in Justice Ste-
vens’ dissent in Bowers that traditional moral condemnation
15904            WITT v. DEP’T OF THE AIR FORCE
is insufficient to uphold a law, even under the rational basis
test, especially one penalizing “ ‘individual decisions by mar-
ried [and unmarried] persons, concerning the intimacies of
their physical relationship.’ ” Id. at 577-78 (quoting Bowers,
478 U.S. at 216 (Stevens, J., dissenting).

                                1

  Some of this language, taken alone, might appear to sweep
somewhat broadly. As if to prevent lower courts from mistak-
ing such an appearance for the actual holding, however, Law-
rence explicitly limited the reach of the liberty interest that it
protected in a concluding paragraph:

       The present case does not involve minors. It does
    not involve persons who might be injured or coerced
    or who are situated in relationships where consent
    might not easily be refused. It does not involve pub-
    lic conduct or prostitution. It does not involve
    whether the government must give formal recogni-
    tion to any relationship that homosexual persons
    seek to enter.

Id. at 578 (emphasis added).

   Witt, as several other lower court opinions have done,
remarked upon the sometimes opaque language of the Law-
rence opinion. See Witt, 527 F.3d at 816 (noting the “studied
limits of the verbal analysis in Lawrence”); see also United
States v. Extreme Assocs., Inc., 352 F. Supp. 2d 578, 591
(W.D. Pa. 2005) (noting the “lack of clarity in Lawrence”),
rev’d on other grounds, 431 F.3d 150 (3d Cir. 2005). But, as
the limiting language quoted above shows, the occasional
generality of the analysis does not mean that Lawrence
applies to any statute that affects homosexual conduct to the
exclusion of the rest of the case law on substantive due pro-
cess. Such is common sense, and our sister circuits have rec-
ognized it. See, e.g., Muth v. Frank, 412 F.3d 808, 817 (7th
                 WITT v. DEP’T OF THE AIR FORCE            15905
Cir. 2005) (“Lawrence . . . did not announce . . . a fundamen-
tal right, protected by the Constitution, for adults to engage in
all manner of consensual sexual conduct . . . .”); Lofton v.
Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804,
817 (11th Cir. 2004) (noting that “the shared homosexuality
component” does not alone require application of Lawrence);
United States v. Marcum, 60 M.J. 198, 205 (2004) (same).

   I fear that the panel was misled by some of the most gen-
eral and abstract statements in Lawrence, and therefore failed
to exercise such common sense restraint. With respect, I sug-
gest that, in placing Witt under Lawrence’s umbrella, the
panel made precisely the mistake that Lawrence’s limiting
paragraph warned lower courts against. I submit that if one
reads Lawrence with an eye to determining what cases it
meant to control, this mistake becomes apparent.

                                2

   The Court’s final summary, along with the limiting lan-
guage, neatly shows how to read its broad pronouncements
along with the specifics of the case before it: “[t]he petitioners
are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty . . .
gives them the full right to engage in their conduct without
intervention of the government.” Lawrence, 539 U.S. at 578.

   The Supreme Court recites that the “petitioners are entitled
to respect for their private lives,” reiterating the general
thought animating its opinion. Proceeding from this statement
to an applicable holding, however, it concludes that the State
cannot tread on that entitlement—how?—“by making their
private sexual conduct a crime.” Finally, the Court repeats the
conclusion from the perspective of the individual. He or she
has the right “to engage in [sexual] conduct without the inter-
vention of the government.” “[I]ntervention,” standing alone,
is quite broad, but we must consider the context. The Court
15906              WITT v. DEP’T OF THE AIR FORCE
seems to have had in mind a certain kind of government
intrusion—criminal sanction—and a certain kind of human
activity—free participation in intimate behavior. The Witt
panel professed its desire to focus on what the Lawrence
Court did rather than to “dissect[ ] isolated pieces of text,”
Witt, 527 F.3d at 816, and yet Witt’s analysis derives almost
entirely from Lawrence’s dicta. What Lawrence did was to
strike down an outlier criminal statute punishing private, con-
sensual homosexual conduct in the home. Lawrence, 539 U.S.
at 578. Some of our sister circuits have already arrived at the
same conclusion. See, e.g., Lofton, 358 F.3d at 815
(“Lawrence’s holding was that substantive due process does
not permit a state to impose a criminal prohibition on private
consensual homosexual conduct.”).

   Crucially, as if to anticipate challenges like the one before
the Witt panel, Lawrence concludes by limiting its holding to
the facts of the case. See Lawrence, 539 U.S. at 578. I have
quoted the entire passage above, see supra at 15904, but the
most relevant limitation here is that the opinion did not apply
itself to cases involving “public conduct” or require that “the
government . . . give formal recognition to any relationship
that homosexual persons seek to enter,” Lawrence, 539 U.S.
at 578.7 If one combines the holding with this self-imposed
limitation, one comes to the inexorable conclusion that a Law-
rence case requires, at least, a criminal sanction on private
conduct. Put in the negative, Lawrence did not deal with laws
addressed to public conduct or non-criminal statutes.
  7
    Several other circuits have cited Lawrence’s limiting paragraph in con-
cluding that it did not apply to a case. See, e.g., Lofton, 358 F.3d at 817
(refusing to apply Lawrence to a case involving minors); Marcum, 60 M.J.
at 208 (refusing to apply Lawrence to a case involving “a person ‘who
might be coerced’ or who was ‘situated in [a] relationship[ ] where con-
sent might not easily be refused’ ” (alterations in original) (quoting Law-
rence, 539 U.S. at 578)).
                 WITT v. DEP’T OF THE AIR FORCE            15907
                                3

   Does such reading unjustifiably narrow Lawrence’s reach?
It is, of course, true that Lawrence contains some broad lan-
guage, but we cannot stretch every scrap of dictum beyond
the breaking point of the holding it underlies. I believe that
careful scrutiny of the Lawrence opinion vindicates my read-
ing of it.

   All the statutes Lawrence cites in explaining its actual hold-
ing are criminal statutes. See generally 539 U.S. at 567-74.
Indeed, almost all of the substantive due process cases the
Court cites at the start of its analysis for the most general
propositions in the opinion also dealt with criminal statutes.
See id. at 564-67 (summarizing the reasoning of Griswold v.
Connecticut, 381 U.S. 479 (1965) (invalidating statute crimi-
nalizing the use of contraceptives); Eisenstadt v. Baird, 405
U.S. 438 (1972) (invalidating statute criminalizing the distri-
bution of contraceptives to unmarried persons); and Carey v.
Population Services International, 431 U.S. 678 (1977)
(invalidating statute criminalizing the sale or distribution of
contraceptives to persons younger than sixteen years old)).

   Furthermore, in explaining why the Texas statute offended
the Constitution, the Court focused like a laser on its criminal
consequences. See, e.g., id. at 571 (“The issue is whether the
majority may use the power of the State to enforce [moral]
views on the whole society through operation of the criminal
law.” (emphasis added)); id. at 575 (“When homosexual con-
duct is made criminal by the law of the State, that declaration
in and of itself is an invitation to subject homosexual persons
to discrimination . . . .” (emphasis added)); id. (“The stigma
this criminal statute imposes . . . is not trivial. The offense to
be sure, is but a Class C misdemeanor . . . . [but] it remains
a criminal offense with all that imports for the dignity of the
persons charged. The petitioners will bear on their record the
history of their criminal convictions.” (emphases added)); id.
(“[I]f Texas convicted an adult for private, consensual homo-
15908            WITT v. DEP’T OF THE AIR FORCE
sexual conduct under the statute here in question the con-
victed person would come within the registration laws of at
least four States . . . .” (emphases added)); id. at 576 (noting
“the consequential nature of the punishment and the state-
sponsored condemnation attendant to the criminal prohibition
. . . . [and that] the Texas criminal conviction carries with it
the other collateral consequences always following a convic-
tion” (emphases added)). These sentences form much of the
reasoning preceding the holding that the Court summarized at
the end of its opinion, namely that “[t]he State cannot demean
[homosexuals’] existence or control their destiny by making
their private sexual conduct a crime.” Id. at 578 (emphasis
added).

   The reasoning of Lawrence also suggests that it was one of
those cases, which periodically arise, in which the Court sees
itself as striking down an anachronistic or extreme statute,
that is, an irrational outlier. See, e.g., City of Cleburne v. Cle-
burne Living Ctr., 473 U.S. 432 (1985) (striking down zoning
ordinance requiring a special-use permit to build a group
home for the mentally disabled). It was, after all, the increas-
ingly unusual nature, and rare enforcement, of criminal stat-
utes like the one in Texas that motivated the Lawrence Court
in part. See Lawrence, 539 U.S. at 573 (“The 25 States with
laws prohibiting the relevant conduct referenced in the Bow-
ers decision are reduced now to 13, of which 4 enforce their
laws only against homosexual conduct.”). In explaining why
its decision would not cause significant social upheaval—i.e.,
would not strike down too many laws—Lawrence noted the
dwindling number of other states that criminalized homosex-
ual conduct. See id. at 570-71, 573. In fact, the smallness of
this number was one of the justifications the Court gave for
overruling Bowers at all. Thus, that this number is indeed
small and that states are unlikely to revive the type of criminal
statute at issue does not mean that lower courts should be
extending Lawrence to new situations.

   In any event, Lawrence limits itself in numerous ways, see,
e.g., id. at 578; I merely suggest that by ignoring those limits
                WITT v. DEP’T OF THE AIR FORCE             15909
in this case, we have erroneously embroiled ourselves in a
debate which belongs predominantly in the political branches.

                               B

   Once one keeps these limits in mind, it becomes apparent
that Witt strayed far beyond the proper reach of Lawrence.
The case before the panel involved both public conduct and
a non-criminal statute. The opinion makes much of the fact
that the homosexual acts for which, in part, Major Witt was
dismissed occurred in the privacy of the couple’s shared
home. But nothing in the “Don’t Ask, Don’t Tell” policy for-
bids anyone from doing anything in the home on pain of crim-
inal or even of civil penalties. Indeed, the whole point of the
policy is to keep such private behavior private. If no one asks
and no one tells, no one in the military cares. “Don’t Ask,
Don’t Tell” is about how the military manages its personnel;
the policy only matters if an employee’s homosexual conduct
or acknowledgment of homosexuality becomes public. What
happened in this case, and what must happen for “Don’t Ask,
Don’t Tell” to apply, is that homosexual conduct, originally
private or not, became public. And Lawrence simply does not
apply to non-criminal public conduct. Id. at 578.

   Furthermore, “Don’t Ask, Don’t Tell” imposes no criminal
sanction—the intrusion that so worried the Court in Law-
rence. Major Witt has been and remains at liberty to carry on
a homosexual relationship, even though the Air Force plans
to discharge her. Lawrence may guarantee people the liberty
to engage privately in “sexual practices common to a homo-
sexual lifestyle,” id. at 578, but it never suggests a constitu-
tional right to job security. See Lofton, 358 F.3d at 817
(refusing to apply Lawrence to the adoption of children in part
because “[t]he relevant state action is not criminal prohibition,
but grant of a statutory privilege. And the asserted liberty
interest is not the negative right to engage in private conduct
without facing criminal sanctions, but the affirmative right to
receive official and public recognition.”).
15910            WITT v. DEP’T OF THE AIR FORCE
   A final corollary of the Court’s focus on criminal sanctions
for consensual activity in the home is that Lawrence does not
apply in the military context. The opinion excludes public
conduct from its holding. It is difficult to imagine a context
more public than the personnel policies of the armed services.
Indeed, the initial conclusion the Court drew from the broad
language of early substantive due process cases supports this
interpretation: “as a general rule, [the State or a court should
not] define the meaning of the relationship or . . . set its
boundaries absent injury to a person or abuse of an institution
the law protects.” Lawrence, 539 U.S. at 567. American juris-
prudence reflects consistent deference to the considerations of
the military, as one of the institutions the law protects. See,
e.g., Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986);
Rostker v. Goldberg, 453 U.S. 57, 66 (1981) (“The operation
of a healthy deference to legislative and executive judgments
in the area of military affairs is evident in several recent deci-
sions of this Court.”); Parker v. Levy, 417 U.S. 733, 743
(1974) (“This Court has long recognized that the military is,
by necessity, a specialized society separate from civilian soci-
ety.”). Just this term, the Supreme Court explicitly reaffirmed
this tradition of deference in a case involving “ ‘complex,
subtle, and professional decisions as to the composition, train-
ing, equipping, and control of a military force,’ which are
‘essentially professional military judgments.’ ” Winter v. Nat-
ural Res. Def. Council, 555 U.S. ___ (2008) (quoting Gilligan
v. Morgan, 413 U.S. 1, 10 (1973), and also citing Goldman,
475 U.S. at 507).

   By remanding to the district court for further proceedings,
Witt is in considerable tension with this traditional deference,
which obtains even when it comes to constitutional rights.
See, e.g., Goldman, 475 U.S. 509-10 (rejecting a First
Amendment challenge to a military policy barring an Ortho-
dox Jew from wearing his yarmulke while in uniform). The
fact-specific and subjective inquiry that Witt ordered the dis-
trict court to undertake on remand recalls the “independent
evaluation of the evidence” by a district court that the
                    WITT v. DEP’T OF THE AIR FORCE                     15911
Supreme Court declared “quite wrong” in Rostker. 453 U.S.
at 83 (insisting that the district court should have “adopt[ed]
an appropriately deferential examination of Congress’ evalua-
tion of [the] evidence” (emphasis added)). Indeed, I am also
reminded of Chief Justice Warren’s warning that “courts are
ill-equipped to determine the impact upon discipline that any
particular intrusion upon the military might have.” Earl War-
ren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev.
181, 187 (1962).8

   All of these reasons show quite clearly that Lawrence does
not apply to the “Don’t Ask, Don’t Tell” policy. Since Law-
rence did not disturb our pre-Lawrence precedents holding
that such policy survives rational basis review, I believe the
panel should have simply applied our existing law.

                                     III

   Even if Lawrence did apply to Witt, the panel significantly
overstated the implications of such application. It began by
noting that Lawrence did not read like a typical rational basis
case, which seems fair enough. But I respectfully suggest that
the panel made too much of that by importing from Sell, a
case which had nothing to do with Lawrence, a multi-factor
heightened scrutiny test. Lawrence is but one decision in the
sprawling jurisprudence regarding the substantive reach of the
Due Process Clause, and understanding its role requires plac-
ing it in context.
  8
    I note also that the Supreme Court has specifically disapproved of the
overzealous use of case-specific balancing tests in substantive due process
cases. Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (observing
that “by establishing a threshold requirement—that a challenged state
action implicate a fundamental right—before requiring more than a rea-
sonable relation to a legitimate state interest to justify the action, [Supreme
Court case law] avoids the need for complex balancing of competing inter-
ests in every case”). This disapproval only intensifies in the military con-
text, as Rostker shows. 453 U.S. at 79-83.
15912           WITT v. DEP’T OF THE AIR FORCE
                               A

   Since the Supreme Court initiated the third iteration of sub-
stantive due process in Griswold, its cases have moved, some-
times haltingly, toward a distinction between abridgements of
“fundamental rights,” which merit strict scrutiny, and other
laws restricting the freedom of individuals to act, which
receive rational basis review only. Crucially, the Court has
policed the boundaries between these two regimes closely,
leaving no doubt that lower courts should not broaden the
reach of substantive due process beyond the strict confines of
precedent. Glucksberg, 521 U.S. at 720 (“[W]e ‘ha[ve] always
been reluctant to expand the concept of substantive due pro-
cess because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.’ ” (quoting
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)).

  To guide lower courts, the Supreme Court has explained its
“established method” for determining what counts as a funda-
mental right, nowhere more famously than when it reversed
our decision in Glucksberg:

    First, we have regularly observed that the Due Pro-
    cess Clause specially protects those fundamental
    rights and liberties which are, objectively, deeply
    rooted in this Nation’s history and tradition and
    implicit in the concept of ordered liberty, such that
    neither liberty nor justice would exist if they were
    sacrificed. Second, we have required in substantive-
    due-process cases a careful description of the
    asserted fundamental liberty interest. Our Nation’s
    history, legal traditions, and practices thus provide
    the crucial guideposts for responsible decisionmak-
    ing, that direct and restrain our exposition of the Due
    Process Clause. As we stated recently in Flores, the
    Fourteenth Amendment forbids the government to
    infringe . . . “fundamental” liberty interests at all, no
    matter what process is provided, unless the infringe-
                 WITT v. DEP’T OF THE AIR FORCE              15913
    ment is narrowly tailored to serve a compelling state
    interest.

Id. at 720-21 (internal quotation marks and citations omitted),
rev’g Compassion in Dying v. Washington, 79 F.3d 790 (9th
Cir. 1996) (en banc).

   It is certainly true, as the opinion in Witt points out, that the
Supreme Court has occasionally made exceptions to this dual
structure in specific cases. Sell is one such case; the abortion
cases are another example, since they apply an analysis
unique to their subject-matter. But it is up to the Supreme
Court to carve out such niches, not a panel of the United
States Court of Appeals for the Ninth Circuit. See Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989) (admonishing a federal appellate court for anticipating
a change in Supreme Court case law and for refusing to apply
controlling precedent). The opinion in Lawrence, unlike that
in Sell, simply did not clearly lay out such a new standard of
review.

   Exactly where Lawrence fits into the framework of Glucks-
berg and the Court’s modern substantive due process jurispru-
dence certainly has proven a vexing question. But one can say
with confidence that, measured against Glucksberg’s estab-
lished method, Lawrence did not announce a new fundamen-
tal right. See Lawrence, 539 U.S. at 594 (Scalia, J.,
dissenting) (“The Court today does not . . . once . . . describe
homosexual sodomy as a ‘fundamental right.’ ”). And, more
importantly, Lawrence gave no license to ignore Glucksberg’s
cautionary admonition to hew closely to precedent in substan-
tive due process cases. In particular, the Supreme Court
reminds us that

    [b]y extending constitutional protection to an
    asserted right or liberty interest, we, to a great extent,
    place the matter outside the arena of public debate
    and legislative action. We must therefore exercise
15914              WITT v. DEP’T OF THE AIR FORCE
      the utmost care whenever we are asked to break new
      ground in this field, lest the liberty protected by the
      Due Process Clause be subtly transformed into the
      policy preferences of the Members of this Court.

Glucksberg, 521 U.S. at 720 (internal quotation marks and
citation omitted).

   Our panel, regrettably, did not heed this advice but instead
drifted well off course. Not once does Witt cite Glucksberg or
relevant due process law beyond Lawrence and associated
cases. Not once does Witt pause to consider whether it had
forgotten the limits of both Lawrence and Glucksberg and
ventured into the wilderness. Instead, it simply applied three
parts of the four-factor test of Sell, a case Lawrence never
cites, as a kind of makeshift heightened scrutiny.9 The only
conclusion to draw from such heightened scrutiny is either
that Witt created a new fundamental right or that it elevated
a liberty interest to some other kind of protected status. Either
innovation is without sanction of the Supreme Court and
defies the Court’s admonitions to tread cautiously in the area
of substantive due process.10
  9
    Again, I must confess that I find it difficult to understand why Sell is
relevant to this case. After all, “[t]he question presented” in Sell was
“whether the Constitution permits the Government to administer antipsy-
chotic drugs involuntarily to a mentally ill criminal defendant [ ] in order
to render that defendant competent to stand trial for serious, but nonvio-
lent, crimes.” 539 U.S. at 169.
   10
      It also bears repeating that Witt never defined the right to which its
novel standard of review would apply—private homosexual living
arrangements, sexual behavior in general, the right to a job in the military
even if sexual conduct should become public, or something else. This is
not the “careful description” the Supreme Court requires of courts before
they apply heightened scrutiny. See Glucksberg, 521 U.S. at 721. Nor is
this a trivial oversight. As Justice Jackson famously cautioned, “we must
do our utmost to make clear and easily understandable the reasons for
deciding [cases involving civil liberties] as we do. Forthright observance
of rights presupposes their forthright definition.” Douglas v. City of Jean-
nette, 319 U.S. 157, 182 (1943) (Jackson, J., dissenting in part and concur-
ring in part).
                WITT v. DEP’T OF THE AIR FORCE             15915
   The result of the panel’s innovation—its remand to the dis-
trict court to develop the record on an as-applied basis—flies
in the face of both Congress’ careful consideration and the
Supreme Court’s emphasis on deference to military policies.
Such judicial adventurism lays the groundwork for a continu-
ing series of fact-bound challenges to the specific application
of a law that Witt only calls into constitutional question in the
first place by stretching substantive due process beyond
repair. I know no principle of law or logic that justifies such
a result.

                               B

   Contrast the panel’s approach with that of the Eleventh Cir-
cuit in Lofton, which recognized that Lawrence did not create
a fundamental right. Lofton, 358 F.3d at 815. Lofton read
Lawrence in the context of the Supreme Court’s substantive
due process jurisprudence to evaluate what the Court “did” in
that case. Performing the task that Witt overlooked, Lofton
checked Lawrence against cases such as Glucksberg which
articulate the two-part test for the recognition of fundamental
rights under the Due Process Clause, a test conspicuously
absent from Lawrence. Id. at 815-17; see also Glucksberg at
719-20. Given that Lawrence did not run through that test, but
simply struck down the Texas statute under rational basis
review, and the Court’s advisable caution in this area, see
Glucksberg, 521 U.S. at 720, the Lofton court unsurprisingly
concluded that Lawrence did not articulate any new funda-
mental right.

   Several other courts of appeals have concluded likewise,
reading the opinion alongside the body of substantive due
process case law. See, e.g., Seegmiller v. LaVerkin City, 528
F.3d 762, 770-71 (10th Cir. 2008); Williams v. Att’y Gen. of
Ala., 378 F.3d 1232, 1235-43 (11th Cir. 2004); see also Syl-
vester v. Fogley, 465 F.3d 851, 857-58 (8th Cir. 2006) (dicta);
Muth, 412 F.3d at 817-18 (same). But cf. Cook, 528 F.3d at
53-54 (holding that, although Lawrence did not recognize a
15916            WITT v. DEP’T OF THE AIR FORCE
fundamental right, it did recognize a “protected liberty inter-
est”); Marcum, 60 M.J. at 205 (holding that Lawrence did not
recognize a fundamental right but does require “searching
constitutional inquiry”). The government’s petition for rehear-
ing also lists several district, bankruptcy, and state courts that
have followed suit, some in holdings and some in dicta.

                                C

   It is no secret that Lawrence pursues rational basis review
with unusual vigor. But if the panel wished to identify cases
analogous in this respect, it might have pointed either to City
of Cleburne or to Romer v. Evans, 517 U.S. 620 (1996),
instead of to Sell. In both of those cases, as in Lawrence, the
Supreme Court struck down, under the rational basis test,
laws that on inspection seemed to reflect little more than
“bare animus” and “irrationality.” Compare Lawrence, 539
U.S. at 577 (accepting as controlling the view that “the fact
that the governing majority in a State has traditionally viewed
a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice”), with Cleburne, 473
U.S. at 450 (“[T]he short of it is that [the statute] in this case
appears to us to rest on an irrational prejudice against the
mentally retarded . . . .”), and Romer, 517 U.S. at 634 (“[A]
bare . . . desire to harm a politically unpopular group [is not
a] legitimate governmental interest.” (internal quotation
marks omitted)). The same cannot be said of the “Don’t Ask,
Don’t Tell” policy, which Congress enacted into law after an
exhaustive review of the military’s needs and the pros and
cons of adopting the policy. See Cook, 528 F.3d at 58-60
(reviewing Congress’ deliberations regarding “Don’t Ask,
Don’t Tell”).

   Such observations dramatize the panel’s mistake. A basic
rule of substantive due process jurisprudence is that, barring
subject-area-specific standards such as those the Court fash-
ioned in the abortion cases or in Sell, fundamental rights get
strict scrutiny, and everything else gets rational basis. Thus,
                WITT v. DEP’T OF THE AIR FORCE            15917
if Lawrence did not establish the heightened scrutiny standard
that the panel jury-rigged from portions of Sell—and it did not
—then Supreme Court law requires the use of the plain
vanilla rational basis test. By inventing a specialized standard
of review, Witt broke that rule.

                              IV

   No matter how strongly some of us may feel about the
underlying issues in this case, the Supreme Court’s precedents
in substantive due process law compel not only our usual obe-
dience, but also our self-conscious restraint. We have no man-
date to follow either our reasons or our convictions down
paths the Constitution and the Court have left for Congress to
chart. Lawrence did not change that, nor did it provide a
forum for lower courts to measure the policy decisions of
Congress against the circumstances of a particular litigant.

    Whatever we think of its merits, the “Don’t Ask, Don’t
Tell” policy is not an outlying anachronism, but a considered
legislative judgment. If Congress now reconsiders it in the
light of new developments or evidence, then it acts entirely
within its constitutional powers. But until Congress acts, the
federal judiciary should not preempt its policy choices, and
certainly not at the cost of tearing substantive due process law
from the guideposts to which the Supreme Court has fastened
it.

  For the foregoing reasons, I respectfully dissent from our
unfortunate decision not to rehear this case en banc.



KLEINFELD, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by BEA, Circuit Judge:

  I reach the same conclusion as Judge O’Scannlain, that we
ought to rehear this case en banc and affirm. The district court
15918              WITT v. DEP’T OF THE AIR FORCE
was correct in dismissing Major Witt’s challenge for failure
to state a claim upon which relief could be granted. I write
separately because that conclusion is compelling even taking
the law more favorably to the panel’s view than Judge
O’Scannlain would.

   Suppose, for the sake of argument, that the line of authority
beginning with Griswold v. Connecticut1 and resting at pres-
ent with Lawrence v. Texas2 establishes a broad constitutional
right, enforceable in civil as well as criminal proceedings, to
liberty among consenting adults to have whatever sort of sex-
ual contact they choose.3 And suppose further, for the sake of
argument, that the burden on the government to justify inter-
ference with this constitutional right to sexual liberty is inter-
mediate or strict scrutiny, rather than scrutiny to determine
whether the government restraint has a rational basis.4 I do not
suggest that either of these propositions is or should be true
or false, but use them as hypothetical bases for discussing the
present case.

   Even under such a broad and aggressive interpretation of
Lawrence, the panel would still be mistaken. The reason why
is that the general constitutional right to sexual liberty com-
petes against the especially high level of deference we are
required to extend to Congress and the President regarding
  1
     381 U.S. 479 (1965).
  2
     539 U.S. 558 (2003).
   3
     Compare Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir.
2008) (finding the state’s interest in morality provided an “constitutionally
insufficient” basis to uphold a law banning the advertising and distribution
of sex toys) with Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007)
(finding the state’s interest in morality provided a sufficient basis to
uphold a law banning the sale of sex toys).
   4
     Compare Cook v. Gates, 528 F.3d 42 (1st Cir. 2008); United States v.
Marcum, 60 M.J. 198 (C.A.A.F. 2004) (applying “heightened scrutiny” or
“searching constitutional inquiry”) with Seegmiller v. Laverkin City, 528
F.3d 762, 770-71 (10th Cir. 2008); Williams v. Att’y Gen. of Ala., 378 F.3d
1232, 1235-43 (11th Cir. 2004) (applying rational basis review).
                   WITT v. DEP’T OF THE AIR FORCE                  15919
military affairs, and few liberties prevail against that defer-
ence. As explained below, I do not think the panel’s decision
can stand unless Goldman v. Weinberger falls.5

   “Don’t Ask, Don’t Tell,” or “DADT” as the panel calls it,
is not a policy adopted by the military. It is among the major
policy initiatives during the first two years of the Clinton
Administration. Few laws passed by Congress receive such
extensive scrutiny by individual legislators, witnesses military
and otherwise testifying at hearings, journalists, and the gen-
eral public as this one.6 No doubt sex triggers more public
attention than, say, improvements to airports. At the end of
the extensive public controversy, Congress passed and the
President signed a law embodying the policy challenged in
this lawsuit, 10 U.S.C. § 654, promulgated November 13, 1993.7

   Congress made fifteen findings explaining the reasons for
the law. Among them are that “[s]uccess in combat requires
military units that are characterized by high morale, good
order and discipline, and unit cohesion,”8 that “military soci-
ety is characterized by . . . numerous restrictions on personal
behavior, that would not be acceptable in civilian society,”9
that military standards “regulate a member’s life for 24 hours
each day,”10 that living conditions are sometimes “character-
ized by forced intimacy with little or no privacy,”11 and that
   5
     475 U.S. 503 (1986). Winter v. Natural Resources Defense Council,
Inc., No. 07-1239, 2008 WL 4862464, at *12 (U.S. Nov. 12, 2008),
recently reminded us that Goldman requires “great deference to the profes-
sional judgment of military authorities concerning the relative importance
of a particular military interest.”
   6
     See Cook v. Gates, 528 F.3d 42, 58-60 (1st Cir. 2008) (detailing the
“exhaustive” consideration given the policy).
   7
     Pub. L. 103-160, § 571(a), 107 Stat. 1547, 1670-73 (1993).
   8
     10 U.S.C. § 654(a)(6) (2006).
   9
     10 U.S.C. § 654(a)(8)(B) (2006).
   10
      10 U.S.C. § 654(a)(9) (2006).
   11
      10 U.S.C. § 654(a)(12) (2006).
15920             WITT v. DEP’T OF THE AIR FORCE
“presence in the armed forces of persons who demonstrate a
propensity or intent to engage in homosexual acts would
create an unacceptable risk to the high standards of morale,
good order and discipline, and unit cohesion that are the
essence of military capability.”12 The statute requires separa-
tion (subject to numerous exceptions) from the armed forces
of persons who have engaged in homosexual acts or declared
their homosexuality.13

   It is not our business to decide whether Congress and the
President were correct or mistaken in their judgment about
homosexuality and military effectiveness. I intimate no view
of my own. Many homosexuals have been excellent soldiers,
as is evidently the case with Major Witt, and some militaries
seem to function fine with homosexuals in the ranks. On the
other hand, further injecting passions of love and jealousy into
the emotional maelstrom of armed nineteen year olds who
may soon die for their country may reasonably be seen by
Congress and the President as too risky, especially when com-
bined with minority sexual orientations.

   I cannot tell just what the panel intends for the district court
to do on remand. The panel remanded the case to the district
court to determine whether, under a heightened level of scru-
tiny, application of this law to Major Witt “significantly fur-
thers the government’s interest.”14 Congress and the President
concluded that it does, because the rule is general, for the
entire military. The panel cannot mean that the district court
should repeat the extensive congressional hearings that pre-
ceded adoption of the law, to determine whether the court
agrees with the policy adopted. But the panel does not say
what sort of evidence the district court is supposed to con-
sider, or precisely what factual question the evidence is sup-
posed to answer.
  12
     10 U.S.C. § 654(a)(15) (2006).
  13
     10 U.S.C. § 654(b) (2006).
  14
     Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008).
                  WITT v. DEP’T OF THE AIR FORCE               15921
   Do model officers such as Major Witt get an exception to
the rule? Popular officers? Officers whose units appear to
have suffered no decline in morale and unit cohesion? The
panel does not justify making any of these things matter. Sup-
pose all facts elicited for all these questions and all other par-
ticularized questions about Major Witt come out in her favor.
She could be assigned to a different unit and a different loca-
tion, perhaps in a war zone, tomorrow,15 or her personal rela-
tionships and the relationships and feelings within her unit
could change. Or even if none of those things happen, other
homosexuals in the unit, either less popular or less capable
than Major Witt, may become envious that she has more sex-
ual liberty than they do, generating an attitude particularly
corrosive to discipline. Congress and the President established
a rule of general applicability, and morale probably requires
that people be treated alike. As the only other circuit to have
considered this issue post-Lawrence concluded, “[e]very as-
applied challenge brought by a member of the armed forces
against the Act, implicates this interest [in morale and unit cohe-
sion].”16 In the Goldman case discussed below, Justice Ste-
vens’s concurring opinion expressly rejected individualized
balancing of the constitutionally protected interest against the
military interest, such as the panel seems to require, because
“we must test validity of the . . . rule not merely as it applies
to Captain Goldman but also as it applies to all service per-
sonnel . . . .”17

   The panel, relying on civilian cases of criminal prosecution
for homosexual conduct, Lawrence v. Texas,18 and forced
medication of a criminal defendant, Sell v. United States,19
gives mere lip service to the military aspect of the case.
  15
     Cf. 10 U.S.C. § 654(a)(11) (2006).
  16
     Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008).
  17
     Goldman v. Weinberger, 475 U.S. 503, 512 (1986) (Stevens, J. con-
curring).
  18
     539 U.S. 558 (2003).
  19
     539 U.S. 166 (2003).
15922              WITT v. DEP’T OF THE AIR FORCE
Regardless of what liberties the Constitution guarantees for
civilians, the military context changes the analysis. As the
Court held in Rostker v. Goldberg, “the tests and limitations
to be applied may differ because of the military context.”20 In
Rostker, the Supreme Court rejected a due process challenge
to drafting men but not women, justifying its holding on the
ground that “judicial deference . . . is at its apogee when legis-
lative action under the congressional authority to raise and
support armies and make rules and regulations for their gover-
nance is challenged.”21 Congress appears to have shaped a
finding in the statute before us to fit the Rostker language, the
finding that “the Constitution of the United States commits
exclusively to the Congress the powers to raise and support
armies . . . and make rules for the government and regulation
of the land and naval forces.”22

   Quite a few constitutional rights do not apply to the mili-
tary as they do in civilian life. For example, though manda-
tory conscription is not currently in force, men but not women
must register for the draft, and an equal protection challenge
may be ruled out by Rostker v. Goldberg.23 When men are
drafted, they are not free to decline the employment on Thir-
teenth Amendment grounds, as civilians are.24 And soldiers
may be vigorously prosecuted for desertion, though civilians
are generally free to leave an employment.25 If a new Secre-
tary in, say, the Department of Education issued an order that
all employees must stand and salute when a higher ranking
employee enters the room, no doubt a First Amendment chal-
lenge would succeed, perhaps with an a fortiori reference to
the proposition that even a child need not salute the flag in
  20
     453 U.S. 57, 67 (1981).
  21
     Id. at 70.
  22
     10 U.S.C. § 654(a)(1) (2006).
  23
     453 U.S. 57 (1981).
  24
     Arver v. United States (Selective Draft Law Cases), 245 U.S. 366, 390
(1918).
  25
     10 U.S.C. § 885 (2006).
                  WITT v. DEP’T OF THE AIR FORCE                  15923
school during wartime,26 yet it is hard to imagine a soldier
defeating an insubordination charge on the ground that he had
a First Amendment right to express his true feeling of disre-
spect and not make a false show of respect for a superior offi-
cer who entered the room.27

   This case should be treated as an a fortiori application of
the Supreme Court’s holding in Goldman v. Weinberger.28 An
Orthodox Jewish rabbi serving as a clinical psychologist in a
base hospital was recommended for non-retention because he
wore a yarmulke (5 1/2″ circle of dark cloth) on his head on
duty. The right to free exercise of religion is certainly as pro-
tected by the Constitution as whatever right to sexual liberty
Lawrence may create, and the military headgear policy was
merely a regulation, not a statute, yet the Court rejected Cap-
tain Goldman’s Free Exercise challenge to application of the
rule. The Court relied on its well established general principle
that “ ‘the military is, by necessity, a specialized society sepa-
rate from civilian society,’ ”29 and “ ‘must insist on a respect
for duty and a discipline without counterpart in civilian life.’ ”30
The Court went so far as to say that “[t]he essence of military
service ‘is the subordination of the desires and interests of the
individual to the needs of the service,’ ”31 while defining the
service’s “needs” to embrace pretty much whatever the mili-
tary thought desirable to promote “discipline” and “uniformi-
ty.”32
  26
     W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943).
  27
     See, e.g., U.S. Army Field Manual 22-5 (1986). Cf. 10 U.S.C. §§ 888,
889, 892 (2006).
  28
     475 U.S. 503 (1986).
  29
     Id. at 506 (quoting Parker v. Levy, 417 U.S. 733, 473 (1974)).
  30
     Id. at 507 (quoting Schlesinger v. Councilman, 420 U.S. 738, 757
(1975)).
  31
     Id. (quoting Orloff v. Willoghby, 345 U.S. 83, 92 (1953)).
  32
     Id. at 508-10.
15924              WITT v. DEP’T OF THE AIR FORCE
   Congress picked up the language from Goldman in its find-
ings in the statute before us, that “the armed forces . . . exist
as a specialized society . . . characterized by . . . numerous
restrictions on personal behavior, that would not be accept-
able in civilian society.”33 It is more difficult to imagine
threats to order and discipline from the wearing of a yarmulke
by a clinical psychologist in an on-shore base hospital, than
from the emotions stirred up by sexual conduct, and free exer-
cise of religion is among the most fundamental constitutional
rights, yet religion gives way to the military interest in disci-
pline and uniformity. If a man does not have a constitutional
right to wear an unobtrusive 5 ” circle of dark cloth on his
head as his religion requires, because of the threat to disci-
pline and uniformity, it is hard to see how an individual could
nevertheless be entitled to practice or declare a sexual orienta-
tion that the military, Congress, and the President have con-
cluded endangers military effectiveness.

   Major Witt has a legitimate and important interest in asso-
ciating and enjoying sexual relationships with those whom
she chooses, as she chooses. Yet even these sorts of human
relationships, among the most private and important, are sub-
ject to strict military regulation. For example, fraternization
between officers and enlisted persons is a military offense.34
Laws against adultery have generally fallen into desuetude for
civilians, but are routinely enforced by the military.35 If a cap-
tain and a corporal fall in love, or if a soldier has sexual inter-
course with another soldier’s spouse, the threat to military
discipline and unit cohesion is serious regardless of the sexes
  33
     10 U.S.C. § 654(a)(8)(A)-(B) (2006).
  34
     10 U.S.C. § 892 (2006); U.S. Army Reg. 600-20, at 4-16 (Mar. 18,
2008).
  35
     The highest military court has dealt with 5 such cases thus far in 2008.
United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008); United States v.
Bragg, 66 M.J. 325 (C.A.A.F. 2008); United States v. Dacus, 66 M.J. 235
(C.A.A.F. 2008); United States v. Brooks, 66 M.J. 221 (C.A.A.F. 2008);
United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008).
                  WITT v. DEP’T OF THE AIR FORCE            15925
of the participants. Our soldiers make great sacrifices for our
country. At the very least, they sacrifice much of their liberty.36
I am unable to see, under Rostker and Goldman, how Major
Witt’s liberty under Lawrence can trump the decision Con-
gress and the President made to limit that liberty in the mili-
tary.



KOZINSKI, Chief Judge, with whom Judges BEA and M.
SMITH join, dissenting from the order denying the petition
for rehearing en banc:

   The panel has done a fine job in an exceptionally difficult
and fraught area of the law. And Major Witt’s case compel-
lingly illustrates the sometimes arbitrary and destructive oper-
ation of the “Don’t Ask, Don’t Tell” policy. At the same time,
Judge O’Scannlain raises serious doubts about the scope of
Lawrence, and Judge Kleinfeld makes a strong case for defer-
ence to the political branches on military matters.

   I’m not sure who’s right, but I am sure that this is the type
of case we need to take en banc because it “involves a ques-
tion of exceptional importance.” Fed. R. App. P. 35(a)(2). The
deference due in the realm of military affairs, see, e.g., Winter
v. Natural Res. Def. Council, Inc., No. 07-1239, 2008 U.S.
LEXIS 8343 (Nov. 12, 2008), reinforces the deference we
owe to the political branches when they act in concert: “When
the President acts pursuant to an express or implied authoriza-
tion of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that
Congress can delegate.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

  When we stand against the combined might of the other
branches of government, we should ensure that our own
  36
    10 U.S.C. § 654(a)(5) (2006).
15926           WITT v. DEP’T OF THE AIR FORCE
authority is at its maximum. En banc rehearing—whatever the
outcome—would have shown that we gave this matter the
sustained attention it merits. Moreover, there is strength in
numbers: The conclusions of an en banc court would reflect
many more points of view and could not easily be dismissed
as outliers.

   Finally, there’s much to be said here for making haste
slowly. Delaying disposition of the case while we reconsid-
ered it en banc might have given the political branches a
chance to revisit the DADT policy in light of experience over
the last 15 years—including that in Major Witt’s case. Fed. R.
App. P. 35(a)(2) is there for a reason and we would have been
well advised to follow its directive.
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