by Bob Roehr
A federal appeals court has declined to hear an en banc review of a lower court ruling challenging the antigay military policy known as “Don’t Ask, Don’t Tell.” The Bush administration may quickly file an appeal with the U.S. Supreme Court, or leave that decision to the incoming Obama administration.
Major Margaret Witt had an exemplary 18 year career as a nurse in the Air Force but was discharged in 2006 after her commander learned that she was a lesbian. She challenged the constitutionality of DADT in federal court in Tacoma, Wash. but lost.
A three member panel of the U.S. Court of Appeals for the Ninth Circuit overturned that decision in May, saying, for the first time, that the government must provide a more stringent justification for DADT than the “rational basis” required by earlier courts.
The panel based its ruling on the 2003 decision Lawrence v. Texas, in which the U.S. Supreme Court struck down all remaining state sodomy laws. It said the government must not merely have a reason for the policy, it must demonstrate that DADT significantly enhances discipline and unit cohesion, and balance that against how it impinges on the rights of gay Americans serving in the military.
Conservative justices argued that Lawrence was applied too broadly, it is only relevant to criminal statutes, and precedent requires deference to the military on personnel matters.
Lawyers for the Pentagon appealed the decision but the entire Ninth Circuit decline an en banc review of the case. Its decision came down on Dec. 4.
If left to stand, the Witt decision becomes binding precedent in the Ninth Circuit, a vast swath of the country that stretches from Arizona to Alaska and across the Pacific Ocean. But it only established procedures, the case of Major Witt would be sent back to the district court for a hearing on the facts to see if the government can meet the higher standards in justifying DADT in this particular case.
The government has 90 days in which to appeal the decision to the U.S. Supreme Court. It would be difficult, though not impossible, for the Bush administration to file an appeal before it leaves office. The incoming Obama administration could ask for an extension.
Candidate Obama has said that the policy should be repealed. At the same time, persons close to the incoming administration have said not to expect quick action on repealing DADT. The Ninth Circuit ruling may force a reappraisal of that timeline.
Obama “might like to see it held unconstitutional, but I’m guessing he’d rather not have the issue take center state via a showdown in the Supreme Court in the immediate future,” wrote constitutional law professor Dale Carpenter on the popular legal blog The Volokh Conspiracy. “I also doubt the current court would hold DADT unconstitutional, and a ruling in favor of it might actually politically entrench it for a few more years.”
Carpenter argued that sending the Witt case back to trial might buy time for congressional repeal of the policy without risking an unfavorable Supreme Court precedent.