by Bob Roehr
A three-member federal appeals court panel has sent a challenge to the anti-gay military policy known as "Don't Ask, Don't Tell" (DADT), back to the lower court for trial. The Ninth Circuit Court ruling in Witt v. Department of the Air Force was issued on May 21.
Most importantly, the panel said that the 2003 Lawrence v. Texas decision, which struck down state sodomy laws, requires that in evaluating the impact of DADT on gays, the court has to use a more stringent standard that the "rational basis" previously used to evaluate the policy. The government must not merely have a reason for the policy, it must justify it in light of how DADT impinges upon the rights of gay Americans.
Major Margaret Witt was a flight nurse who had served with distinction in the U.S. Air Force for 19 years. She was assigned to a base near Spokane, Washington when an anonymous caller noted that she was living off-base with another woman.
That was enough to start an investigation and lead to Witt's discharge from the service in 2004, even though no evidence was presented that sexual orientation affected her job performance.
Witt filed a lawsuit challenging DADT in 2006, with help of the American Civil Liberties Union (ACLU) of Washington. The trial judge dismissed the case, but the appeals court reversed that decision and ordered a trial.
A key portion of that decision read: "We hold that the government attempts to intrude upon the personal 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."
It said the trial court "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."
ACLU of Washington Executive Director Kathleen Taylor said, "Major Witt has been an exemplary member of the military with a distinguished record of service. To discharge her simply because of her sexual orientation is unfair to her and also is unwise for the military which needs her skills."
"The Air Force now has to demonstrate a very important reason to keep Major Witt, a model officer and nurse, from serving her country," said Kevin Cathcart, executive director of Lambda Legal, which filed a brief in the case.
Legal scholars generally have seen the reliance upon the Lawrence decision as important. But the ruling only sends the matter back for a trial to establish the factual basis of the case. It is unlikely that a case that has not gone to trial will make its way to the U.S. Supreme Court.
Two other challenges to DADT, in Boston and Los Angeles, have gone to trial and the decisions are currently overdue.
