Golden Gate University Law Review


"Don't Ask, Don't Tell" ("DADT") refers to the statutory U.S. policy of excluding openly homosexual individuals from serving in the military. It prohibits members of the armed forces from engaging in homosexual acts, stating that they are gay or bisexual, or openly marrying a person of the same sex. Although the constitutionality of DADT has been upheld several times in federal Court, these cases preceded the United States Supreme Court's holding in Lawrence v. Texas. In Lawrence, the Supreme Court struck down a Texas antisodomy statute as unconstitutional and declared that the private homosexual conduct targeted by the law was a part of the "liberty" protected by the substantive Due Process Clause of the Fourteenth Amendment. In 2008, a panel of the United States Court of Appeals for the Ninth Circuit reconsidered the constitutionality of DADT in light of Lawrence. Pre-Lawrence, DADT had been upheld under rational-basis review. However, Lawrence left unclear the proper level of scrutiny to apply to classifications based on homosexuality. While the Ninth Circuit in Witt v. Department of the Air Force did not subject DADT to strict scrutiny, it nevertheless became the first U.S. court of appeals to directly hold that Lawrence v. Texas requires a higher level of scrutiny than mere rational basis review.