“Indeed, far from establishing a broad interest, the Supreme Court in Lawrence struck down with marksman-like precision an outlier criminal statute and expressly emphasized the limitations of the liberty interest guiding its holding.”

October 1st, 2011

Judge O’Scannlain concurred separately in the panel opinion finding moot the district court’s opinion finding DADT unconstitutional.

In the end, careful application of the Supreme Court’s “established method” in substantive due process cases shows that Lawrence did not establish any fundamental right—let alone any right relevant to the Don’t Ask, Don’t Tell policy in the military.

“[J]udicial self-restraint requires” federal courts “to exer- cise the utmost care whenever we are asked to break new ground” in the field of substantive due process. Flores, 507 U.S. at 302 (internal quotation marks omitted). This note of caution is especially important in cases such as this one, where moral and personal passions run high and where there is great risk that “the liberty protected by the Due Process Clause [will] be subtly transformed into the policy prefer- ences” of unelected judges. Glucksberg, 521 U.S. at 720. The Constitution entrusts to “public debate and legislative action” the task of identifying and protecting rights that are not rooted in our constitutional text, history, or traditions. Id. This case involves precisely such a right, and legislative action achieved the goals pursued in this lawsuit. That was the proper resolu- tion: although Log Cabin had every right to bring this suit, only Congress—not the courts—had the authority under our Constitution to vindicate Log Cabin’s efforts here.

In this highly charged area, we constitutionally inferior courts should be careful to apply established law. Failure to do so begets the very errors that plagued this case. That fail- ure culminated in a ruling that invalidated a considered con- gressional policy and imposed a wholly novel view of constitutional liberty on the entire United States. The Supreme Court’s cases tell us to exercise greater care, cau- tion, and humility than that. Indeed, our constitutional system demands more respect than that. When judges sacrifice the rule of law to find rights they favor, I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them.

O’Scannlain went out of his way to hold that the district court did not properly apply Lawrence v. Texas, failed to apply Washington v. Glucksberg, and should not be relied upon by anyone. No one else joined his opinion. So I guess the district court opinion can be relied on by others?

Funny also because in Nordyke v. King (2009 version), O’Scannlain wrote an opinion finding a right to keep and bear arms through substantive due process. I guess those rights are ok.