Quote:
Originally Posted by UGAalum94
But wouldn't it end up at the Supreme Court anyway? Can you see it not being appealed, unless the armed forces have had a big change of heart lately?
I see this as being one of the issues that will go away as one generation of leadership replaces another and that the policy itself will change. Until then, what could you point to at the federal level that the policy is unconstitutional?
I understand what you mean about the 9th circuit, but would the case really stop there? It might be fun to imagine the bigger cases that could keep the supreme court too busy.
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It's no guarantee that the Supreme Court will even hear the case...appellant's lawyer may not file a cert petition, and the Court might not grant the petition if that happens. The Supreme Court reviews such a small number of cases (compared to the number of cert petitions, and the number of federal appellate cases) that it's always a better bet to assume that the Court won't end up reviewing a case.
As to whether it's Constitutional or not...it depends on how the appellate court frames the issue. Depending on the right involved, there are different standards by which the courts could view the issue in light of the Constitution, ranging in scrutiny from the rational basis standard to the strict scrutiny approach. Basically, it's a way of weighing the merits of the policy against any issues of Constitutional infringement. Depending on the standard used, the courts could find that the governmental interest is weighty enough to outweigh those Constitutional concerns.
In this case, I'd imagine it would be presented as some sort of equal protection argument.
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