Serious Push Back on Military’s Gay Ban
Published on May 22, 2008
U.S. Appeals Court ruling in case of Spokane’s Major Margaret Witt is a challenge to military powers under “Don’t Ask, Don’t Tell”
In what could be a landmark decision that disrupts the U.S. military’s process for removing gay and lesbian members from the nation’s armed forces, a U.S. Ninth Circuit Court of Appeals panel has vacated a federal district court’s dismissal of a challenge to the military’s “Don’t Ask, Don’t Tell” policy brought by Spokane’s Margaret Witt. Click here to read the decision.
Witt is an Air Force nurse who’d risen to the rank of major before being investigated and honorably discharged last fall for violating the “Don’t Ask, Don’t Tell” policy.
Under the terms of the May 21st decision, she is now in a position to force the Air Force to produce specific and persuasive evidence to a federal district judge sufficient to show that her constitutional rights to privacy as a lesbian are outweighed by an overriding national interest in expelling her from the service.
It’s the first time that an appellate court has ruled in a way that would force military prosecutors to produce evidence that an officer or enlisted person’s expressed sexual preference is actually disruptive to “unit cohesion” and other stated national objectives of the controversial policy. Thus far, at least, the federal government has been able to remove gay and lesbians from the armed services on the mere presumption that their acknowledged homosexuality was unacceptably disruptive to their units.
In the majority decision authored by Judge Ronald Gould, the Ninth Circuit panel said it found the basis for its ruling in Witt’s contention that the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas. In her appeal of a Tacoma judge’s 2006 dismissal of her case, Witt argued that Lawrence had established a fundamental right to privacy in sexual relationships that, at a minimum, this right forces the courts to carefully scrutinize any governmental assertion that the exercise of the right is actually in conflict with a government interest.
Much of the ruling’s 34 pages are devoted to applying the Lawrence decision to the circumstances of Witt’s case. After substantially agreeing with Witt about the privacy right that was solidified by the Supreme Court in Lawrence, the Ninth Circuit panel turned to another 2003 U.S. Supreme Court case, Sell v. United States, to address the factors courts should consider in evaluating cases like Witt’s.
Here, the Ninth Circuit ruling points out that in Sell the Supreme Court ruled that even when the government expresses an “important” interest that competes with an individual’s liberty, a reviewing court must consider:
1) special circumstances that may lessen the importance of that interest;
2) whether the government action will “significantly further” its expressed interest; and,
3) whether the government action is really necessary to achieve the result it is interested in.
Ultimately, the Ninth Curcuit decision finds that it is “unclear on the record” whether the “Don’t Ask, Don’t Tell” expulsion of Major Witt satisfies those standards.
“The Air Force attempts to justify the policy by relying on congressional findings regarding ‘unit cohesion’ and the like,” the opinion states, “but that does not go to whether the application of Don’t Ask, Don’t Tell specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest. Remand is therefore required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can Don’t Ask, Don’t Tell be measured against the appropriate constitutional test.”
Witt entered the Air Force in 1987 and was in a committed long-term relationship with another woman, a civilian, from mid-1997 to 2003, during a time when Witt, a Spokane resident, was on reserve duty and assigned to McChord Air Force Base in Tacoma.
Center for Justice Chief Catalyst Breean Beggs says he is encouraged by the Ninth Circuit’s ruling in the Witt case and hopes it represents progress toward protecting the civil rights of gay and lesbians whether they’re in the military services or not.
“The Center for Justice is committed to the experience of justice for all people, especially those who have historically been discriminated against,” Beggs said. “We regularly provide assistance to those who’ve been been discriminated against on the basis of sexual orientation and filed briefs supporting the plaintiff’s cause in the Washington Supreme Court case of Anderson v. King County that considered whether there was a state constitutional right to same sex marriage.
Posted May 22nd