James L. Dronenburg v. Vice Admiral Lando Zech, Chief of Naval Personnel

ORDER

On Appellant’s Suggestion for Rehearing En Banc

PER CURIAM.

The Suggestion for Rehearing en banc of Appellant, and the briefs amici curiae in support thereof, have been circulated to the full Court and a majority of the judges in regular active service have not voted in favor thereof. On consideration of the foregoing, it is

ORDERED, by the Court, en banc, that the aforesaid Suggestion for rehearing en banc is denied.

Opinion dissenting from denial of suggestion to hear case en banc filed by Chief Judge SPOTTSWOOD W. ROBINSON, III, and Circuit Judges WALD, MIKVA and HARRY T. EDWARDS.

Statements of Circuit Judges GINSBURG and STARR are attached. Also attached is a statement of Circuit Judge BORK, joined by Circuit Judge SCALIA.

*1580 SPOTTSWOOD W. ROBINSON, III, Chief Judge; WALD, MIKVA and HARRY T. EDWARDS, Circuit Judges, dissenting from denial of suggestion to hear case en banc:

We would vote to vacate the decision of the panel and to rehear the matter before the court en banc. This is a case of extreme importance in both a practical and a jurisprudential sense. For reasons discussed below, we do not think that Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g mem. 403 F.Supp. 1199 (E.D.Va.1975), is controlling precedent here. Moreover, we are deeply troubled by the use of the panel’s decision to air a revisionist view of constitutional jurisprudence.

The panel’s extravagant exegesis on the constitutional right of privacy was wholly unnecessary to decide the case before the court. The ratio decidendi of the panel decision is fairly well stated in the last paragraph of the opinion. Jurists are free to state their personal views in a variety of forums, but the opinions of this court are not proper occasions to throw down gauntlets to the Supreme Court.

We find particularly inappropriate the panel’s attempt to wipe away selected Supreme Court decisions in the name of judicial restraint. Regardless whether it is the proper role of lower federal courts to “create new constitutional rights,” Dronenburg v. Zech, 741 F.2d 1388, at 1396 (D.C.Cir.1984), surely it is not their function to conduct a general spring cleaning of constitutional law. Judicial restraint begins at home.

We object most strongly, however, not to what the panel opinion does, but to what it fails to do. No matter what else the opinions of an intermediate court may properly include, certainly they must still apply federal law as articulated by the Supreme Court, and they must apply it in good faith. The decisions of that Court make clear that the constitutional right of privacy, whatever its genesis, is by now firmly established. An intermediate judge may regret its presence, but he or she must apply it diligently. The panel opinion simply does not do so. Instead of conscientiously attempting to discern the principles underlying the Supreme Court’s privacy decisions, the panel has in effect thrown up their hands and decided to confine those decisions to their facts. Such an approach to “interpretation” is as clear an abdication of judicial responsibility as would be a decision upholding all privacy claims the Supreme Court had not expressly rejected.

We find completely unconvincing the suggestion that Doe v. Commonwealth’s Attorney controls this case. In Doe, the Supreme Court affirmed without opinion a three-judge district court’s dismissal of a pre-enforcement constitutional challenge to a state criminal statute. Dronenburg, by contrast, challenges the constitutionality of his discharge pursuant to a military regulation not expressly authorized by statute. To hold Dronenburg’s claims hostage to a one-word summary affirmance disregards the well-established principle that such a disposition by the Supreme Court decides the issue between the parties on the narrowest possible grounds. See Mandel v. Bradley, 432 U.S. 173, 176-77, 97 S.Ct. 2238, 2240-41, 53 L.Ed.2d 199 (1977) (per curiam); Fusari v. Steinberg, 419 U.S. 379, 391-92, 95 S.Ct. 533, 540-41, 42 L.Ed.2d 521 (1975) (Burger, C.J., concurring). Moreover, the Court has clearly indicated that the Doe issue remains open. See Carey v. Population Services International, 431 U.S. 678, 688 n. 5, 694 n. 17, 97 S.Ct. 2010, 2018 n. 5, 2021 n. 17, 52 L.Ed.2d 675 (1977) (“[T]he Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults.”); New York v. Uplinger, — U.S.-, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984) (dismissing certiorari as improvidently granted).

Even were we convinced by Judge Ginsburg’s well-intentioned attempt to justify *1581 the panel decision as a simple application of Doe, we would still vote to vacate the opinion. The opinion purports to speak for the court throughout the text, and we cannot indulge its twelve-page attack on the right of privacy as a harmless exposition of a personal viewpoint. Cf Dronenburg, at 1396 n. 5.

In its eagerness to address larger issues, the panel fails even to apply seriously the basic requirement that the challenged regulation be “rationally related to a permissible end.” There may be a rational basis for the Navy’s policy of discharging all homosexuals, but the panel opinion plainly does not describe it. The dangers hypothesized by the panel provide patently inadequate justification for a ban on homosexuality in a Navy that includes personnel of both sexes and places no parallel ban on all types of heterosexual conduct. In effect, the Navy presumes that any homosexual conduct constitutes cause for discharge, but it treats problems arising from heterosexual relations on a case-by-ease basis giving fair regard to the surrounding circumstances. This disparity in treatment calls for serious equal protection analysis.

We intimate no view as to whether the constitutional right of privacy encompasses a right to engage in homosexual conduct, whether military regulations warrant a relaxed standard of review, or whether the Navy policy challenged in this case is ultimately sustainable. What we do maintain is that the panel failed to resolve any of these compelling issues in a satisfactory manner. Because we believe that the panel substituted its own doctrinal preferences for the constitutional principles established by the Supreme Court, we would vacate the decision of the panel and hear the case anew.

GINSBURG, Circuit Judge:

In challenging his discharge for engaging in homosexual acts in a Navy barracks, appellant argued that the conduct in question falls within the zone of constitutionally protected privacy. The panel held that, either because of the binding effect of the Supreme Court’s summary affirmance in Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily aff'g 403 F.Supp. 1199 (E.D.Va.1975), or on the basis of principles set forth in other Supreme Court decisions, the Navy’s determination could not be overturned. I agree with the first basis of that holding. See Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223 (1975).

It is true that, in its discussion of the alternative basis, the panel opinion airs a good deal more than disposition of the appeal required.1 Appellant and amici, in suggesting rehearing en banc, state grave concern that the panel opinion’s “broad scope” creates correspondingly broad law for the circuit and, in so doing, sweeps away prior landmark holdings and divergent analyses.

The concern is unwarranted. No single panel is licensed to upset prior panel rul *1582 ings, landmark or commonplace, or to impose its own philosophy on “the court.” The panel in this case, I am confident, had no design to speak broadly and definitively for the circuit. I read the opinion’s extended remarks on constitutional interpretation as a commentarial exposition of the opinion writer’s viewpoint, a personal statement that does not ■ carry or purport to carry the approbation of “the court.”

Because I am of the view that the Supreme Court’s disposition in Doe controls our judgment in this case, and that the panel has not tied the court to more than that, I vote against rehearing the case en banc.

Statement of Circuit Judge BORK, joined by Circuit Judge SCALIA.

. The dissenting opinion bends "judicial restraint" out of shape in suggesting that it is improper for lower federal courts ever to propose “spring cleaning” in the Supreme Court. In my view, lower court judges are not obliged to cede to the law reviews exclusive responsibility for indicating a need for, and proposing the direction of, "further enlightenment from Higher Authority.” See United States v. Martino, 664 F.2d 860, 881 (2d Cir.1981) (Oakes, J., concurring). It is a view on which I have several times acted. See, e.g., Mosrie v. Barry, 718 F.2d 1151, 1162-63 (D.C.Cir.1983) (concurrence questioning consistency of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), with prior precedent on the concept of liberty sheltered by due process); Copper & Brass Fabricators Council, Inc. v. Department of the Treasury, 679 F.2d 951, 953-55 (D.C.Cir.1982) (concurrence questioning cogency of Supreme Court precedent on "zone of interests” test for determining standing to sue); see also American Friends Serv. Comm, v. Webster, 720 F.2d 29, 49 (D.C.Cir.1983) (Wald, J.) (citing, inter alia, Copper & Brass); United States v. Ross, 655 F.2d 1159, 1193-94 (D.C.Cir. 1981) (Wilkey, J., dissenting) (questioning seamlessness of web woven by Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and its precursors), rev’d, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).