GOULD, Circuit Judge:

Plaintiff-Appellant Major Margaret Witt ("Major Witt") sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander ("the Air Force") after she was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Major Witt alleges that 10 U.S.C. § 654, commonly known as the "Don't Ask, Don't Tell" policy ("DADT"), violates substantive due process, the Equal Protection Clause, and procedural due process. She seeks to enjoin DADT's enforcement. The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We reverse and remand in part, and affirm in part.

I

Major Witt entered the Air Force in 1987. She was commissioned as a Second Lieutenant that same year and promoted to First Lieutenant in 1989, to Captain in 1991, and to Major in 1999. In 1995, she transferred from active to reserve duty and was assigned to McChord Air Force Base in Tacoma, Washington.

By all accounts, Major Witt was an outstanding Air Force officer. She received medals for her service, including the Meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous others. Her annual "Officer Performance Reviews" commended her accomplishments and abilities. Major Witt was made an Air Force "poster child" in 1993, when the Air Force featured her in recruitment materials; photos of her appeared in Air Force promotional materials for more than a decade.

Major Witt was in a committed and long-term relationship with another woman from July 1997 through August 2003. Major Witt's partner was never a member nor a civilian employee of any branch of the armed forces, and Major Witt states that she never had sexual relations while on duty or while on the grounds of any Air Force base. During their relationship, Major Witt and her partner shared a home in Spokane, Washington, about 250 miles away from McChord Air Force Base. While serving in the Air Force, Major Witt never told any member of the military that she was homosexual.

In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him. An Air Force chaplain contacted her thereafter to discuss her homosexuality, but she declined to speak to him, as well. In November 2004, Major Witt's Air Force superiors told her that they were initiating formal separation proceedings against her on account of her homosexuality. This was confirmed in a memorandum that Major Witt received on November 9, 2004. That memorandum also stated that she could not engage in any "pay or point activity pending resolution" of the separation proceedings. Stated another way, she could not be paid as a reservist, she could not earn points toward promotion, and she could not earn retirement benefits. When she received this memorandum, Major Witt was less than one year short of twenty years of service for the Air Force, at which time she would have earned a right to a full Air Force retirement pension.

Sixteen months later, on March 6, 2006, Major Witt received another memorandum notifying her that a discharge action was being initiated against her on account of her homosexuality. It also advised her of her right to request an administrative hearing, which she promptly did. On April 12, 2006, Major Witt filed this suit in the United States District Court for the Western District of Washington, seeking declaratory and injunctive relief from the discharge proceedings.

A military hearing was held on September 28-29, 2006. The military board found that Major Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of DADT. It recommended that she be honorably discharged from the Air Force Reserve. The Secretary of the Air Force acted on this recommendation on July 10, 2007, ordering that Major Witt receive an honorable discharge.

Major Witt is well regarded in her unit, and she believes that she would continue to be so regarded even if the entire unit was made aware that she is homosexual. She also contends that the proceedings against her have had a negative effect on unit cohesion and morale, and that there is currently a shortage of nurses in the Air Force of her rank and ability. We must presume those facts to be true for the purposes of this appeal.

II A

We review de novo a dismissal for failure to state a claim. Pruitt v. Cheney, 963 F.2d 1160, 1162-63 (9th Cir. 1992).

DADT, 10 U.S.C. § 654, permits the discharge of members of the armed forces on account of homosexual activity. In relevant part, it provides:

(b) Policy. — A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that —

(A) such conduct is a departure from the member's usual and customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

(C) such conduct was not accomplished by use of force, coercion, or intimidation;

(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex.

Id.

Major Witt argues that DADT violates substantive due process, the Equal Protection Clause, and procedural due process. The Ninth Circuit has considered and rejected similar claims in the past, see, e.g., Holmes v. Cal. Army Nat'l Guard, 124 F.3d 1126, 1136 (9th Cir. 1997) (rejecting an Equal Protection Clause challenge to DADT under rational basis review); Philips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir. 1997) (same); Better v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980) (rejecting procedural due process and substantive due process challenges to a Navy regulation forbidding homosexual service in the Navy). However, Major Witt argues that Holmes, Philips, and Better are no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the Supreme Court struck down a Texas statute that banned homosexual sodomy. Accordingly, to resolve this appeal, we must consider the effect of Lawrence on our prior precedents.

B

We first assess whether Major Witt has standing to pursue this action. "[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not `conjectural' or `hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, footnote, and quotation marks omitted). Second, plaintiff must present a "causal connection between the injury and the conduct complained of — the injury has to be fairly . . . traceable to the challenged action of the defendant, and, not . . . the result of the independent action of some third party not before the court." Id. (internal quotation marks and brackets omitted). Finally, "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Id. at 561, 112 S.Ct. 2130.

There is little doubt that Major Witt meets the second and third requirements, if she can meet the first requirement — an actual injury from DADT. There are, however, questions about whether she has suffered an actual injury for Article III purposes. Although Major Witt has been suspended, the military board recommended her discharge, and the Secretary of the Air Force ordered her discharge, she has not been formally discharged from the military, as far as the record before us shows. Accordingly, at least some of Major Witt's claims are unripe because they rely on harms which may or may not actually occur. See Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) ("A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." (internal quotation marks omitted))

We conclude that Major Witt meets the Article III requirements for her substantive due process and equal protection claims. Although she has not been discharged formally, Major Witt suffered a cognizable injury on account of her long-term suspension. In addition to the loss of pay and points toward promotion and retirement benefits, Major Witt asserts in a declaration in the record that her suspension seriously harmed her chances of being promoted to Colonel. This injury is sufficient to establish "actual injury" for Article III purposes.

However, the situation is different for Major Witt's procedural due process claim. Major Witt does not allege that she has been deprived of life or a property interest. Her procedural due process claim rests on her assertion that her discharge papers will reflect the reasons for her discharge, and that this in turn will result in a stigma. The record indicates that Major Witt will receive an honorable discharge. We have suggested that an honorable discharge could be stigmatizing if prospective employers had some reason to know of the reasons for the honorable discharge. See Beller, 632 F.2d at 807 (rejecting claim that an honorable discharge resulted in stigma because there was "no evidence indicating that the plaintiffs' service records [we]re likely to impose stigma upon them or make it more difficult for them to seek post-discharge employment"). However, the record does not reflect what will appear on her discharge certificate and, thus, whether any stigma will occur. Accordingly, the procedural due process claim is not ripe for adjudication on this record because the injury that Major Witt asserts may or may not occur. See Paul v. Davis, 424 U.S. 693, 708-10, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (holding that "defamation, standing alone" does not suffice for a stigma-plus claim; there must be "a right or status previously recognized by state law [that] was distinctly altered or extinguished").

We hesitate to dismiss the claim at this stage, however, because the factual situation surrounding Major Witt's discharge may have changed in the course of this appeal. We therefore remand the procedural due process claim to the district court, where the court can consider the factual details of her discharge with more complete and current information.

III

To evaluate Major Witt's substantive due process claim, we first must determine the proper level of scrutiny to apply. In previous cases, we have applied rational basis review to DADT' and predecessor policies. See, e.g., Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate.

A

In Lawrence, the Supreme Court struck down a Texas statute that criminalized consensual homosexual sodomy. 539 U.S. at 578, 123 S.Ct. 2472. In doing so, it also overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), a 1986 decision of the Supreme Court that had upheld a Georgia law criminalizing consensual sodomy. The Court in Lawrence noted that "broad statements of the substantive reach of liberty under the Due Process Clause" can be found in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and, most pertinently, in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Lawrence, 539 U.S. at 564, 123 S.Ct. 2472. "After Griswold," the Court wrote, "it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship." Id. at 565, 123 S.Ct. 2472.

Turning to Bowers, the Court recognized "the Court's own failure to appreciate the extent of the liberty at stake" in that case. Id. at 567, 123 S.Ct. 2472. The Court explained:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct [as the Court did in Bowers] demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

Id.

The Court then discussed the reach of its decision, summarizing:

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Id.

The Supreme Court then provided additional reasons why it was overruling Bowers. First, the Court explained, Bowers was predicated on the erroneous belief that homosexuality was "subject to state intervention throughout the history of Western civilization." Id. at 571, 123 S.Ct. 2472(internal quotation marks omitted). Second, the logic in Bowers "demean[ed] the lives of homosexual persons" and had been widely rejected by state courts and international tribunals. Id. at 575-76, 123 S.Ct. 2472.

The Supreme Court concluded:

[Homosexuals'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Planned Parenthood v. Casey, 505 U.S. 833, 847 [ 112 S.Ct. 2791, 120 L.Ed.2d 674] (1992). The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Id. at 578, 123 S.Ct. 2472.

B

Major Witt argues that Lawrence recognized a fundamental right to engage in private, consensual, homosexual conduct and therefore requires us to subject DADT to heightened scrutiny. The Air Force argues that Lawrence applied only rational basis review, and that the Ninth Circuit's decisions in Holmes, Philips, and Beller remain binding law on DADT's validity. Because Lawrence is, perhaps intentionally so, silent as to the level of scrutiny that it applied, both parties draw upon language from Lawrence that supports their views.

Major Witt argues that the "plain language" of Lawrence demonstrates that heightened scrutiny is required here. She notes that, in Lawrence, the Supreme Court relied on Griswold, 381 U.S. 479, 85 S.Ct. 1678, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), all of which are fundamental rights cases. She also observes that the language of Lawrence emphasizes the importance of the right at issue and refers to "substantial protections" afforded "adult persons in deciding how to conduct their private lives in matters pertaining to sex." "Substantial protections" are not afforded under rational basis review, Major Witt argues, because rational basis review considers only whether the challenged policy is rationally related to a legitimate state interest.

In response, the Air Force argues that the same "plain language" implies only rational basis review. In particular, the Air Force stresses the passage in Lawrence that states that the challenged statute "further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual," 539 U.S. at 578, 123 S.Ct. 2472 (emphasis added). According to the Air Force, legitimate interests are the hallmark of rational basis review. The Air Force also notes that Lawrence never stated that it was applying anything other than rational basis review, so, the Air Force concludes, it surely was not.

1.

As a preliminary matter, the Air Force argues that no court to date has held that Lawrence applied a heightened level of scrutiny. However, the situation is more complex than that presented by the Air Force. Although the Air Force argues that "every Article III court to have decided th[e] question [whether Lawrence applied heightened scrutiny], including three courts of appeals, agreed with the District Court in this case that Lawrence applied rational-basis review, meaning that the case did not implicate a fundamental right," that is not the case. As we see it, only one court of appeals has directly considered the issue.

The first case that the Air Force claims "decided this question," Sylvester v. Fogley, 465 F.3d 851 (8th Cir. 2006), is discussed at length in its brief. However, the Eighth Circuit explicitly declined to address the issue in Sylvester. See id. at 858 ("[W]e need not determine whether Sylvester's sexual conduct is protected as a fundamental privacy right because we would reach the same result applying either the strict scrutiny standard of review or the rational-basis standard of review."). The Seventh Circuit made a similar disclaimer in the next case that the Air Force discusses, Muth v. Frank, 412 F.3d 808 (7th Cir. 2005), which addressed the issue only in dicta. In Muth, the court said:

It may well be that future litigants will insist that Lawrence has broader implications for challenges to other state laws criminalizing consensual sexual conduct. However, because this case is here on habeas review, the only question before this court is whether Lawrence announced a new rule proscribing laws prohibiting the conduct for which Muth was convicted [, incest].

Id. at 818. The court concluded that Lawrence's holding did not apply to the activity in question — incest — and, thus, did not consider the level of scrutiny applied in Lawrence. Id.

Only one of the three courts of appeals that the Air Force claims to have "decided this question" actually has done so. In Lofton v. Secretary of the Department of Children Family Services, 358 F.3d 804, 817 (11th Cir. 2004), the Eleventh Circuit upheld a law that forbade homosexuals from adopting children, explicitly holding that Lawrence did not apply strict scrutiny. Otherwise, our sister circuits are silent.

Nor have we previously directly considered the implications of Lawrence. In Fields v. Palmdale School District, 427 F.3d 1197, 1208 (9th Cir. 2005), we noted that the right to privacy "encompasses a right of sexual intimacy." (Citing Lawrence.) However, we concluded that the action at issue in Fields, a survey of elementary school children that included questions relating to sex, did not interfere with the right of parents to make intimate decisions. Id. Accordingly, we did not apply Lawrence, whatever the level of scrutiny it might require.

One other court of note has considered the implications of Lawrence. In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the United States Court of Appeals for the Armed Forces considered a challenge to an Air Force sodomy law brought by a serviceman who had been convicted of consensual sodomy with a man of inferior rank within his chain of command. That court concluded that the application of Lawrence must be addressed "in context and not through a facial challenge." Id. at 206. Lawrence, the court concluded, did not identify a fundamental right; however, it required "searching constitutional inquiry." Id. at 205. The court distilled this inquiry into a three-step analysis:

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Id. at 206-07 (citation omitted).

The Court of Appeals for the Armed Forces, in our view, applied a heightened level of scrutiny. By considering whether the policy applied properly to a particular litigant, rather than whether there was a permissible application of the statute, the court necessarily required more than hypothetical justification for the policy — all that is required under rational basis review. The court also required consideration of "additional factors" that might justify the policy, which might be viewed as a corollary to the requirement that a challenged policy serve a "compelling" or "important" government interest under traditional forms of heightened scrutiny.

With this mixed background, we now turn to our analysis of Lawrence.

2.

The parties urge us to pick through Lawrence with a fine-toothed comb and to give credence to the particular turns of phrase used by the Supreme Court that best support their claims. But given the studied limits of the verbal analysis in Lawrence, this approach is not conclusive. Nor does a review of our circuit precedent answer the question; as the Court of Appeals for the Armed Forces stated in Marcum, 60 M.J. at 204, "[although particular sentences within the Supreme Court's opinion may be culled in support of the Government's argument, other sentences may be extracted to support Appellant's argument." In these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.

We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review. First, the Court overruled Bowers, an earlier case in which the Court had upheld a Georgia sodomy law under rational basis review. If the Court was undertaking rational basis review, then Bowers must have been wrong because it failed under that standard; namely, it must have lacked "any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). But the Court's criticism of Bowers had nothing to do with the basis for the law; instead, the Court rejected Bowers because of the "Court's own failure to appreciate the extent of the liberty at stake." Lawrence, 539 U.S. at 567, 123 S.Ct. 2472.

The criticism that the Court in Bowers had misapprehended "the extent of the liberty at stake" does not sound in rational basis review. Under rational basis review, the Court determines whether governmental action is so arbitrary that a rational basis for the action cannot even be conceived post hoc. If the Court was applying that standard — "a paradigm of judicial restraint," Beach, 508 U.S. at 314, 113 S.Ct. 2096 — it had no reason to consider the extent of the liberty involved. Yet it did, ultimately concluding that the ban on homosexual sexual conduct sought to "control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Lawrence, 539 U.S. at 567, 123 S.Ct. 2472. This is inconsistent with rational basis review.

Second, the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened scrutiny. As Major Witt pointed out, those cases include Griswold, Roe, and Carey. Moreover, the Court stated that Casey, a post- Bowers decision, cast its holding in Bowers into doubt. Lawrence, 539 U.S. at 573-74, 123 S.Ct. 2472. Notably, the Court did not mention or apply the post-Sowers case of Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), in which the Court applied rational basis review to a law concerning homosexuals. Instead, the Court overturned Bowers because "[i]ts continuance as precedent demeans the lives of homosexual persons." Lawrence, 539 U.S. at 575, 123 S.Ct. 2472.

Third, the Lawrence Court's rationale for its holding — the inquiry analysis that it was applying — is inconsistent with rational basis review. The Court declared: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Id. at 578, 123 S.Ct. 2472 (emphasis added). Were the Court applying rational basis review, it would not identify a legitimate state interest to "justify" the particular intrusion of liberty at issue in Lawrence; regardless of the liberty involved, any hypothetical rationale for the law would do.

We therefore conclude that Lawrence applied something more than traditional rational basis review. This leaves open the question whether the Court applied strict scrutiny, intermediate scrutiny, or another heightened level of scrutiny. Substantive due process cases typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other cases. When a fundamental right is recognized, substantive due process forbids the infringement of that right "at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (emphasis omitted). Few laws survive such scrutiny, and DADT most likely would not. However, we hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the issue here.

Instead, we look to another recent Supreme Court case that applied a heightened level of scrutiny to a substantive due process claim — a scrutiny that resembles and expands upon the analysis performed in Lawrence. In Sell v. United States, 539 U.S. 166, 179, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), the Court considered whether the Constitution permits the government to forcibly administer antipsychotic drugs to a mentally-ill defendant in order to render that defendant competent to stand trial. The Court held that the defendant has a "significant constitutionally protected liberty interest" at stake, so the drugs could be administered forcibly "only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." Id. at 178-80, 123 S.Ct. 2174(internal quotation marks omitted).

Although the Court's holding in Sell is specific to the context of forcibly administering medication, the scrutiny employed by the Court to reach that holding is instructive. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that we are bound by the theory or reasoning underlying a Supreme Court case, not just by its holding). The Court recognized a "significant" liberty interest — the interest "in avoiding the unwanted administration of antipsychotic drugs" — and balanced that liberty interest against the "legitimate" and "important" state interest "in providing appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others." Sell, 539 U.S. at 178, 123 S.Ct. 2174 (internal quotation marks omitted). To balance those two interests, the Court required the state; to justify its intrusion into an individual's recognized liberty interest against forcible medication — just as Lawrence determined that the state had failed to "justify its intrusion into the personal and private life of the individual." Lawrence, 539 U.S. at 578, 123 S.Ct. 2472.

The heightened scrutiny applied in Sell consisted of four factors: First, a court must find that important governmental interests are at stake. . . .

Courts, however, must consider the facts of the individual case in evaluating the Government's interest. . . . Special circumstances may lessen the importance of that interest. . . .

Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. . . .

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. . . .

Fourth, . . . the court must conclude that administration of the drugs is medically appropriate. . . .

539 U.S. at 180-81, 123 S.Ct. 2174. The fourth factor is specific to the medical context of Sell, but the first three factors apply equally here. We thus take our direction from the Supreme Court and adopt the first three heightened-scrutiny Sell factors as the heightened scrutiny balancing analysis required under Lawrence. We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government's interest. See also Aptheker v. Sec'y of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) ("Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." (internal quotation marks omitted)).

In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial. "This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments." City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In Cleburne, the Court employed a "type of `active' rational basis review," Pruitt, 963 F.2d at 1165-66, in requiring the city to justify its zoning ordinance as applied to the specific plaintiffs in that case. And Sell required courts to "consider the facts of the individual case in evaluating the Government's interest." 539 U.S. at 180, 123 S.Ct. 2174. Under this review, we must determine not whether DADT has some hypothetical, post-hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt. This approach is necessary to give meaning to the Supreme Court's conclusion that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Lawrence, 539 U.S. at 572, 123 S.Ct. 2472.

We also conclude that our holding in Beller, 632 F.2d 788, that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.

In Beller, 632 F.2d at 807 n. 19, we applied heightened scrutiny because "[t]he kind of all-or-nothing substantive due process approach . . . d[id] not, we think, reflect the complexity of the Court's [due process] analysis." We reasoned

that substantive due process scrutiny of a government regulation involves a case-by-case balancing of the nature of the individual interest allegedly infringed, the importance of the government interests furthered, the degree of infringement, and the sensitivity of the government entity responsible for the regulation to more carefully tailored alternative means of achieving its goals.

Id. at 807. We recognized "that there [wa]s substantial academic comment which argue[d] that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right of privacy." Id. at 809. But we held that "the importance of the government interests furthered . . . outweigh[ed] whatever heightened solicitude is appropriate for consensual private homosexual conduct." Id. at 810.

Although the heightened scrutiny employed in Beller was prescient of Lawrence, Sell, and the three factors that we adopt today, in Beller we explicitly declined to perform an as-applied analysis. We acknowledged that, "[u]nder the analysis described in our opinion, individual treatment in some circumstances might be required by substantive due process, depending on the outcome of the balancing test." Id. at 808 n. 20. But we refused to apply individual treatment because of "the relative impracticality at th[at] time of achieving the Government's goals by regulations which turn more precisely on the facts of an individual case." Id. at 810. Seller's refusal to perform an as-applied balancing test is clearly irreconcilable with the individualized balancing analysis required under 5865 Cleburne and Sell. Beller's heightened scrutiny analysis and holding therefore have been effectively overruled by intervening Supreme Court authority. See Miller, 335 F.3d at 900 ("We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. . . . In future cases of such clear irreconcilability, a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.").

Here, applying heightened scrutiny to DADT in light of current Supreme Court precedents, it is clear that the government advances an important governmental interest. DADT concerns the management of the military, and "judicial deference to . . . congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). Notably, "deference does not mean abdication." Id. "Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs. . . ." Weiss v. United States, 510 U.S. 163, 176, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994).

However, it is unclear on the record before us whether DADT, as applied to Major Witt, satisfies the second and third factors. The Air Force attempts to justify the policy by relying on congressional findings regarding "unit cohesion" and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government's interest and whether less intrusive means would achieve substantially the government's interest. Remand therefore is required for the district court to develop the record on Major Witt's substantive due process claim. Only then can DADT be measured against the appropriate constitutional standard.

IV

We next turn to Major Witt's Equal Protection Clause claim. She argues that DADT violates equal protection because the Air Force has a mandatory rule discharging those who engage in homosexual activities but not those "whose presence may also cause discomfort among other service members," such as child molesters. However, Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing "whether Bowers itself ha[d] continuing validity"). We thus affirm the district court's dismissal of Major Witt's equal protection claims.

V

The issues posed by this case might generate great concern both from those who welcome Major Witt's continued participation in the Air Force and from those who may oppose it. Those issues must be, and have been, addressed in the first instance by leaders of the military community and by those in Congress with law-making responsibilities. All of Congress's laws must abide by the United States Constitution, however. Taking direction from what the Supreme Court decided in Lawrence and Sell, we hold that DADT, after Lawrence, must satisfy an intermediate level of scrutiny under substantive due process, an inquiry that requires facts not present on the record before us.

In light of the foregoing, we VACATE and REMAND the district court's judgment with regard to Major Witt's substantive due process claim and procedural due process claim, and AFFIRM with regard to the equal protection clause claim. The parties shall bear their own costs on appeal.