Miller v. Rumsfeld

• Decision Date: 15 May 1981
• Docket Number: No. 77-1671,77-1671
• Citation: 647 F.2d 80
• Parties: 25 Fair Empl.Prac.Cas. 1690, 26 Empl. Prac. Dec. P 32,028 James Lee MILLER, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense et al., Defendant-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 80

647 F.2d 80

25 Fair Empl.Prac.Cas. 1690,

26 Empl. Prac. Dec. P 32,028

James Lee MILLER, Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense et al., Defendant-Appellees.

No. 77-1671.

United States Court of Appeals Ninth Circuit.

May 15, 1981.

Before BROWNING, Chief Judge, KENNEDY, Circuit Judge, and CHRISTENSEN, ^* District Judge.

ORDER

The panel as constituted in the above case has voted to deny the petition for rehearing of 632 F.2d 788.

The suggestion for a rehearing en banc having been submitted to a vote of the full court, there is no majority in favor of the suggestion.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

Among those judges of the court voting to hear the case en banc were Judges Boochever and Norris, who file the following dissents from the rejection of the en banc suggestion.

BOOCHEVER, Circuit Judge, concurring in part with Circuit Judge NORRIS' dissent from the court's rejection of the suggestion for rehearing en banc:

Because I believe that this case presents issues of exceptional importance, I join Judge Norris in dissenting from the court's rejection of the suggestion of rehearing en banc. I further agree with the substance of Part III of Judge Norris' dissent. Assuming that the Navy's professed interests are legitimate, they cannot survive either the strict scrutiny test applicable to fundamental rights or the "heightened solicitude" test used by the Beller panel.

NORRIS, Circuit Judge, dissenting from the court's rejection of the suggestion for rehearing en banc:

In Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), a panel of this court upheld as constitutional a Navy regulation which requires the mandatory discharge of any member who has engaged in an act of homosexuality, without regard to individual fitness for service. As Part I of my opinion argues, the Beller panel seriously misconstrues the proper methodology of substantive due process analysis. Part II considers the question avoided by the Beller panel which is crucial to the proper due process analysis: whether private consensual homosexual activity is protected as an aspect of the fundamental right of privacy. Part III analyzes the Navy's justifications for the regulation and demonstrates that they are so wholly inadequate that the regulation is unconstitutional even under the Beller panel's approach to substantive due process. Because I believe that these are issues of exceptional importance, I must dissent from this court's refusal to rehear Beller en banc.

I.

The Supreme Court has stated bluntly that "(s)ubstantive due process has at times been a treacherous field " Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977). Mindful of the excesses of the Lochner ¹ era, the Court has approached a revival of substantive due process with understandable caution and restraint. In Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), Justices Douglas and Harlan, although differing sharply over the form such review should take, urged in separate dissenting opinions that the Court resurrect substantive analysis under the Due Process Clause. Justice Douglas, wary of the specter of the Lochner era, observed that "(t)he error of the old Court was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did." 367 U.S. at 517, 81 S.Ct. at 1763.

Four years later, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court struck down as violative of substantive due process a Connecticut statute prohibiting the use of contraceptives. The Court explicitly rejected the Lochner approach. Id. at 482, 85 S.Ct. at 1680. To guard against the dangers of the Lochner era, wherein the Court sat "as a super-legislature to determine the wisdom, need, and propriety of laws that touch(ed) economic problems, business affairs, or social conditions," id., the Griswold Court adopted a categorical approach. The Court distinguished ordinary laws, which would be reviewed with great deference to the legislature, from laws which infringe activities implicating "fundamental constitutional guarantees." Id. at 485, 85 S.Ct. at 1682. These latter regulations the Court would closely scrutinize under the Due Process Clause. The Connecticut statute at issue in Griswold, because it infringed the fundamental right of privacy and could not withstand strict scrutiny, violated substantive due process.

Although individual justices have disapproved of the fundamental rights approach adopted in Griswold and have suggested different approaches to substantive due process analysis, the Court has yet to abandon it. See, e. g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973) ("Where certain fundamental rights are involved, the Court has held that regulations limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake"). In Beller, a panel of this court nevertheless rejected the fundamental rights approach in favor of a "balancing" approach to substantive due process analysis. This court, in choosing not to rehear Beller en banc, enshrines as the law of this circuit a method of substantive due process analysis which the Supreme Court has scrupulously declined to adopt.

The Beller panel acknowledges that, as recently as Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court was firmly committed to the fundamental rights approach. See 632 F.2d at 807. It suggests, however, that the Court's substantive due process analysis subsequently has become more complex. See id. "Recent decisions," the panel concludes, "indicate that substantive due process scrutiny of a government regulation involves a case-by-case balancing " Id. Thus the panel, despite acknowledging that the plaintiffs' attacks on the Navy regulation "were based on the claim that the conduct prohibited by the regulation was protected as an aspect of the fundamental right of privacy," id. at 807, insists that "this case does not require us to address the question whether consensual private homosexual conduct is a fundamental right," id. The panel offers three citations for this proposition. First, the panel cites Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Zablocki, however, provides no support whatsoever for a balancing approach. The Court found that the Wisconsin statute at issue in Zablocki directly interfered with a fundamental right the right to marry. Id. at 383, 384, 386, 387, 98 S.Ct. at 679, 680, 681. Indeed, the Court specifically relied on Griswold, supra the seminal case in the Court's development of the fundamental rights approach for its substantive due process analysis. Id. at 384, 98 S.Ct. at 679. The Zablocki Court reemphasized the most significant component of that approach: "When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Id. at 388, 98 S.Ct. at 682.

Second, the Beller panel cites the concurring opinion of Justice Stewart in Zablocki, and in particular Justice Stewart's quotation of Justice Harlan's concurring opinion in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). Both Justice Harlan and Justice Stewart argued for a substantive due process approach of a less categorical nature, and in that sense they do provide support for the Beller panel's balancing approach. It would be inaccurate, however, to suggest that this is the approach of the Court itself. Neither Justice Stewart nor Justice Harlan wrote for the majority of the Court. Justice Harlan's argument for a balancing approach is, as one would expect, eloquent and thought-provoking. Never, however, has it been accepted by the Court.

Finally, the Beller panel cites Moore v. City of East Cleveland, supra. Moore demonstrates that the Court is struggling with the substantive due process doctrine: the case produced six opinions. Justice Powell's plurality opinion does not, however, abandon the fundamental rights approach. Indeed, citing Griswold, supra, and Roe, supra, the Court distinguished the two categories of substantive due process cases. First, the cases involving regulations which do not infringe fundamental rights, in which regulations are upheld if they "b(ear) a rational relationship to permissible state objectives." See 431 U.S. at 498-99, 97 S.Ct. at 1934-35. Second, the special cases involving regulations which infringe fundamental rights, where "the usual judicial deference to the legislature is inappropriate." See id. The Court drew upon this fundamental/non-fundamental distinction to explain its decision in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). The Court observed that the statute held invalid in Moore, unlike the somewhat similar statute upheld in Belle Terre, "slic(ed) deeply" into a fundamental right. See 431 U.S. at 498-99, 97 S.Ct. at 1934-35.

The Beller panel simply strikes off on its own down the balancing path; it is not in any sense accurate to suggest that the recent decisions of the Supreme Court compel or even allow this. The problem with the panel's balancing approach the reason, I suggest, that the Supreme Court has refrained from adopting it is that it is inherently standardless. The panel's opinion in Beller demonstrates the result of a standardless approach to substantive due process analysis: judges are left "free to roam where unguided speculation might take them." Poe v. Ullman, supra, 367 U.S. at 542, 81 S.Ct. at 1776 (Harlan, J., dissenting).

The Beller panel observes that there are "important analytic and rhetorical...