The court ruling on Wednesday was fantastic. And smart.
In short, three judges of the 9th Circuit Court of Appeals is forcing a branch of the military to prove that allowing gays to serve would hurt troop readiness and unit cohesion. The arguments that the military has tried to make on this matter for decades are so absurd that any rational person laughs at them. I am glad that some judges are putting the military on the spot to defend a defenseless policy.
The federal appeals court in California on Wednesday reinstated a lawsuit challenging the military’s “don’t ask, don’t tell” policy, which allows gay men and lesbians to serve in the armed forces so long as their sexual orientation remains private.
The case was brought by Maj. Margaret Witt, a flight nurse who served in the Air Force for two decades, received several medals and was featured in the service’s promotional materials.
Major Witt also shared a life with a woman not affiliated with the military for six years in Spokane, Wash., about 250 miles from the base to which she was assigned. The women kept their relationship private, and the decision did not say how the Air Force found out about it.
One of Major Witt’s lawyers described what happened. “Some citizen in Spokane,” the lawyer, James E. Lobsenz, said, “called up and said there are these lesbian women living in a house here and one of them is in the Air Force and you should know that.”
Following an investigation and military hearing, Major Witt was discharged.
Major Witt filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.
The decision was notable for the standard the appeals court instructed Judge Leighton to use in considering the case. The panel said judges considering cases claiming government intrusion into the private lives of gay men and lesbians must require the government to meet a heightened standard of scrutiny.
The usual standard is called “rational basis” review, which merely requires the government to offer a rational reason for a law or policy. The rationale offered by Congress for the “don’t ask, don’t tell” policy is that openly gay and lesbian service members threaten morale, discipline and unit cohesion. Several courts have sustained the policy as rational.
On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.
The majority stopped short of requiring strict scrutiny, an even more searching standard used in race discrimination cases. It also dismissed Major Witt’s equal protection claim, ruling that it was bound by an earlier panel decision on that point.
Judge William C. Canby, the third judge on the panel, would have gone further. He said he would have required the Air Force to satisfy strict scrutiny by proving that the policy served a compelling (rather than merely important) state interest.
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