Federal Judge Makes Abundantly Clear to Lower Courts: Lawrence Case Did Not Create Any New Fundamental Rights


SCOTUSblog reports on a legal ruling that has potentially significant consequences for numerous legal debates happening across the country:

Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas. Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly.

... Apparently not content to have the judge’s ruling simply off the books, Judge O’Scannlain wrote a 10-page concurring opinion in order to provide what he called a “guidepost for responsible decision-making” for courts dealing with claims to gay rights based upon Lawrence.

... Noting that the Log Cabin Republicans had stated that they intended “to use the district court’s judgment” in other cases, the panel responded: “We will be clear: It may not."

... Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books. Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion.

... Judge O’Scannlain, however, wrote explicitly that “Lawrence did not establish any fundamental right.” It did not give lower courts any basis, the judge added, for creating any new fundamental rights for gays. He lambasted Judge Phillips for the legal rationale she had used for nullifying the military gay ban, contending that she had not followed the formula that the Supreme Court itself had laid down for judging claims of violations of so-called “substantive due process” guarantees.

The decision is here -- it includes Judge O’Scannlain’s separately added views.