POLICY BOOT? Is the military's "don't ask, don't tell" policy unconstitutional? In their ruling Wednesday, appeals court judges said the Air Force must prove how discharging lesbian Maj. Margaret Witt furthered military goals.

The 9th U.S. Circuit Court of Appeals revived a case in which former reservist and flight nurse Witt sued the Air Force after she was discharged for being lesbian. The three-judge panel ruled that Witt's suit against the military—dismissed once in 2006—deserved more scrutiny. Opponents of "don't ask, don't tell" hope this ruling is the beginning of the policy's end.

Military Policy: Is "Not Telling" Not Enough?

The "don't ask, don't tell, don't pursue, don't harass" policy (Title 10 of the United States Code § 654) forbids the military from asking about a service member's sexual orientation. However, it does require the military to discharge anyone who acknowledges being gay or who engages in homosexual activity.

Here's how that policy played out in Witt's situation:

• Witt and her girlfriend of six years, who lived about 250 miles from Witt's base, had kept their relationship private.
• In 2004, the Air Force received an anonymous tip that Witt was engaged in a lesbian relationship.
• The same year—just two years before she could have claimed her 20-year military pension—the Air Force suspended Witt without pay.
• After an investigation and a military hearing, the Air Force discharged Witt.
• Witt sued the Air Force in 2006, saying the "don't ask, don't tell" policy violated the Constitution's due process and equal protection clauses.
• Citing "don't ask, don't tell," U.S. District Judge Ronald B. Leighton dismissed her claims.
• Witt appealed the decision this week in the 9th U.S. Circuit Court of Appeals.

Federal Appeals Court to Witt's Rescue

On Wednesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals disagreed with Judge Leighton and reinstated Witt's case for further litigation.

This appeals court is the first to analyze the "don't ask, don't tell" policy based on a Supreme Court decision in 2003 that ruled against a Texas sodomy ban as an unconstitutional invasion of privacy. The appeals court judges said the decision in Texas changed the legal outlook so that, in an individual case like Witt's, more scrutiny over the constitutionality of "don't ask, don't tell" is necessary.

Military Policy Changes Coming?

Aaron Caplan, an American Civil Liberties Union attorney representing Witt, said that by requiring the Air Force to prove that Witt's homosexuality seriously interrupted discipline or morale, the ruling will make things harder for the military.

Before, Caplan said, "all they had to do is show that you were gay and you were out. Now, they have to prove they have a good reason to ruin somebody's career." (The Seattle Times, 5/22/08).

"I am thrilled by the court's recognition that I can't be discharged without proving that I was harmful to morale," said Witt in a statement. "I am proud of my career and want to continue doing my job. Wounded people never asked me about my sexual orientation. They were just glad to see me there." (Associated Press, 5/22/08)

Copyright © 2009 Informify

Sources

Federal court rules against military gays policy (Associated Press, 5/22/08)

Federal Court Reinstates Suit on Gays in Military (The New York Times, 5/22/08)

Court revives "don't ask, don't tell" suit (The Seattle Times, 5/22/08)

Question for Readers:

Do you think the "don't ask, don't tell" policy is fair when a military member's sexual orientation is revealed against his/her will?