The Limits of the Privacy Protection

The Supreme Court today refused to hear a case challenging the Pentagon’s “Don’t Ask, Don’t Tell” policy. There’s been an enormous amount of frustration in the gay community over the White House dragging its feet on this issue, and it certainly doesn’t help that the Obama administration was urging SCOTUS not to hear this case, arguing that DADT is “rationally related to the government’s legitimate interest in military discipline and cohesion.”

I share the growing fear that the Obama administration has decided to distance itself as much as possible from gay rights issues, and that it has no plans to act on behalf of the gay community unless it is absolutely forced to. It’s hurtful and disappointing and, for a president who has been fairly gutsy on national security and foreign policy, genuinely surprising to me.

But today’s announcement from the court brought about a different wave of frustration, rooted in the fact that the Obama administration’s argument and the court’s decision are legally correct. “Rational basis” is a level of scrutiny that the government is almost always able to meet, particularly in a context involving military policy. And while Lawrence v. Texas, the 2003 case striking down sodomy laws, isn’t the most clearly written opinion in the world, it’s pretty clear that it applies rational basis and finds a violation of an individual right to privacy.

That might sound like a pretty progressive ruling, just as the Massachusetts Supreme Court same-sex marriage ruling sounded pretty progressive in its holding that denying LGBT people the right to marry is irrational. The problem with them is that they make for pretty weak precedent. There are basically two approaches courts can take on gay rights cases. First, they can avoid recognizing the rights of LGBT people as LGBT people and instead root their decisions in broad individual rights (like privacy) or strike down laws as completely irrational. But privacy is only going to apply in certain areas (whereas it would have no bearing on, say, same-sex marriage, or DADT), and finding that laws are irrational is pretty legally tenuous and unconvincing. Alternatively, courts can recognize that the LGBT community constitutes a class of people not unlike women or racial or religious groups that have been historically targeted by the majority. If the courts were to make these kinds of decisions, then the level of scrutiny they could apply to laws affecting gay people could jump up, such that the government would be required not just to show the “rationality” of the law but a compelling need for it.

Ultimately, DADT was always destined to be an issue dealt with by Congress and the White House rather than the courts. But the resistance by the courts to provide LGBT people with heightened protection affects marriage rights, employment rights, immigration, and so on. While the courts, predictably, have been the most willing of the three branches to protect gay rights, all three branches have been pretty weak on these issues. The bulk of my anger will remain focused on the president, but he’s not the only one failing to protect equality.