Military Cannot Automatically Discharge Gays, Federal Court Rules

SEATTLE — The military cannot automatically discharge people because they're gay, a federal appeals court ruled in the case of a decorated flight nurse who sued the Air Force over her dismissal.

The three judges from the 9th U.S. Circuit Court of Appeals did not strike down the military's "don't ask, don't tell" policy. But they reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion.

The "don't ask, don't tell, don't pursue, don't harass" policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.

Wednesday's ruling led opponents of the policy to declare its days numbered. It is also the first appeals court ruling in the country that evaluated the policy through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.

When gay service members have sued over their dismissals, courts historically have accepted the military's argument that having gays in the service is generally bad for morale and can lead to sexual tension.

But the Supreme Court's opinion in the Texas case changed the legal landscape, the judges said, and requires more scrutiny over whether "don't ask, don't tell" is constitutional as applied in individual cases.

Under the latest ruling, military officials "need to prove that having this particular gay person in the unit really hurts morale, and the only way to improve morale is to discharge this person," said Aaron Caplan, a staff attorney with the American Civil Liberties Union of Washington state who worked on the case.

Witt, a flight nurse based at McChord Air Force Base near Tacoma, was suspended without pay in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. Witt was honorably discharged in October 2007 after having put in 18 years _ two short of what she needed to receive retirement benefits.

She sued the Air Force in 2006, but U.S. District Judge Ronald B. Leighton dismissed her claims, saying the Supreme Court's ruling in Lawrence v. Texas did not change the legality of "don't ask, don't tell."

The appeals court judges disagreed.

"When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest," Judge Ronald M. Gould wrote.

One of the judges, William C. Canby Jr., issued a partial dissent, saying that the ruling didn't go far enough. He argued that the Air Force should have to show that the policy itself "is necessary to serve a compelling governmental interest and that it sweeps no more broadly than necessary."

Gay service members who are discharged can sue in federal court, and if the military doesn't prove it had a good reason for the dismissal, the cases will go forward, Caplan said.

Another attorney for Witt, James Lobsenz, hailed the ruling as the beginning of the end for "don't ask, don't tell."

"If the various branches of the Armed Forces have to start proving each application of the policy makes sense, then it's not going to be only Maj. Witt who's going to win," Lobsenz said. "Eventually, they're going to say, 'This is dumb. ... It's time to scrap the policy.'"

An Air Force spokeswoman said she had no comment on the decision and directed inquiries to the Defense Department.

Lt. Col. Todd Vician, a Defense spokesman, said he did not know specifics of the case and could not comment beyond noting that "the DOD policy simply enacts the law as set forth by Congress."

Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. She cared for injured patients on military flights and in operating rooms. She was promoted to major in 1999, and she deployed to Oman in 2003 in support of the U.S. invasion of Afghanistan.

A citation from President Bush that year said, "Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions."

Her suspension and discharge came during a shortage of flight nurses and outraged many of her colleagues _ one of whom, a sergeant, retired in protest.

"I am thrilled by the court's recognition that I can't be discharged without proving that I was harmful to morale," Witt said 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."

Comments

[Crozier]

LET ME TRY THIS AGAIN....

I am a gay retired lieutenant colonel who manoevered the DADT and prior rules to serve my country. I support the nurse in her attempts to right this wrong for so many. President Clinton and his DLC and DINO cohorts in the Congress are responsible for this and DOMA.

Candidate Clinton said that he would issue a presidential directive a la HST and AA integration in 1948. He knew that Nunn, a fascist Dixiecrat who disingenuously ran as a "Democrat", and Powell were both opposed to open gay service. Clinton folded like a cheap suit. When you have no principles and your political raison d'etre is triangulation, then nothing happens that is not a compromise with solutions that please the extreme right wing or nothing happens.

[Bystander]

Why, this is a slap in the face to Bill Clinton's policy!!

[KeysDan]

Bystander, DADT is not President Clinton's policy. The law was enacted, as a compromise, after, essentially, a coup, by right-wing legislators and the military. After Mr. Clinton proposed an executive order to permit gay men and women to serve openly in the military, the Joint Chiefs of Staff, with a starring role by its Chair, Colin Powell, to the point of insubordination, and homophobic Senator Sam Nunn (D.GA) Chair of the Senate Armed Services Committee, undermined the president's plan and hobbled the administration of the new president to the point of paralysis. Look at the comment of randyjet today and just think about the mindset President Clinton faced 15 years ago. Change is not easy.

[Crozier]

YOU ARE DISINGENUOUS...says this retired O-5 who is gay. President Clinton promised to perform a Harry Truman presidential-type directive as he did for AA integration in 1948.

Since Clinton's base is and was the DLC or DINO Dixiecrat,. like that fascist Sam Nunn, who is the premier definition of a Democrat in Name Only or a Dixiecrat, and Powell gave him the first test of political leadership, and he folded like a cheap suit. He folded again with DOMA....but don't forget that Corporate Democrats and Republicans are merely two sides of the same coin.

Did I vote for them in 1992 and 1996? Yes. Did I, a liberal and progressive, do as the DLC said to liberals - STFU and give $$$ and vote? Yes.

Do I believe that Obama will NOT triangulate? Yes. Will I ever vote for a Clinton directly or indirectly, ever again? HELL NO ......NOT UNTIL I AM DEAD AT LEAST 24HOURS.

[randyjet]

This is once again judicial activism taken way beyond rational bounds. The Constitution gives ONLY Congress and the President authority over the military and its rules of conduct. The courts usually defer to that rule, unless there is a major illegality violating the militarys own rules. NO court would have had the temerity to overrule segregation in the military. Yet we have justices who think that they are above the Constitution.
In that case, we can now look forward to pilots not needing to have legs and the disabled must be allowed to enlist since it violates their rights to serve. Is that rational? I think not. The physical fitness tests are unfair to the obese and they can now sue to stay in.
The only function of the military is to fight and win wars. It is NOT there to provide an equal employment opportunity for all. To serve that end, the military is exempt from most other rules that are applied to other branches and private business. Congress itself is exempt from the rules that govern everybody else. Will the courts now intervene and force Congress to do the same? That will be a real violation of seperation of powers and we can kiss democracy goodbye.

[useyourbrain]

It's also not there to discriminate against an otherwise competent soldier just because they are gay. There is nothing in being gay that prevents someone from firing a gun or mortar, flying a plane, driving a tank, killing the enemy and getting killed themselves.

Historically, in time of war or combat, the US military has closed it's eyes to gay soldiers. When the war is over, they kick them out. This disproves the claim about unit cohesion. There are so many stories and testimony from soldiers and officers that the military's claims are baseless.

It was interesting to read a few years ago about 4 -5 generals who had just retired from service of many decades. They "came out" but were generally ignored by the press. One's story was truly heartbreaking -- he had never had a partner in life as he devoted his life to the military and to have a partner would have meant he would be thrown out. This man gave his life, literally, most of his life to our country, received decorations, commendations and medals, yet he could not let himself be loved because of this policy. Is that what our constitution is about?

[antaeus]

How do you compare the 1940s to now? If the military had managed to persist with segregation, then the courts would have acted.

And what is with the feeble invocations of limbless pilots and obese infantrymen? Those disadvantages would interfere with performance. But how the hell does the ability to give a blowjob impair one's ability to shoot a gun?

[SlinkyTWF]

The distinction between weapon and gun has always been a cornerstone of military discipline and training. I know because we were frequently required to sing about it.

[kevinmcd]

Since 1803 the Supreme Court has had the final word on what is Constitutional and what is not. That is their job. You actually think that the military should be allowed to discriminate based on race if it believes the races must be segregated. Then you reallu don't understand the Constitution. Your example of the pilot is lame; the military can discriminate if it can show a compelling government interest and obviiously there would be a safety issue there.

[lavie]

During my military casreer (24 yrs) I served with several officers who were gay. They were all good solders who preformed their duties in an outstanding manner. It is my hope the high court upholds this one. It appears when the court comes down on the rights of the individual it is then an :activist" court. Peter

[Annette]

Sorry, but human rights are not under the control of our presidential idiot. The constitution gives the courts the right and obligation to determine if laws are constitutional. The courts are saying that the rule don't ask and dont tell are on their way out. The military cannot fire without cause. Just saying poor morale must be proved. There is no evidence that gay people cannot fight as well as a non-gay person. The military cannot prove poor morale because it doesn't exist. The best soldier I knew, best decorated and absolutely fierce was as gay as could be. The military has been busy dumping linguists who speak Arabic. They have not been able to recruit sufficient hetrosexual Arab linguists. Don't ask is actually reducing the ability of the military to fight and prevail against Al quaeda.

As to your idea that the courts shouldn't intervene in the military. They have been doing it since the US was founded. The military is not one of the three branches of govenment, it is not co-equal to either the executive branch or the legislative the courts are co equal to them.

[StephenDedalus82]

I never understood the right wing argument on this issue. Our soldiers are supposedly the bravest, most hardened, macho beings in the history of earth, but they are too squeamish to share a barracks with a gay man?

[desthmoneses]

maybe their not that brave after all

[hypnotoad72]

Especially with the number of heterosexual officers and soldiers in trouble for rape, assault, et cetera...

The military exists for one reason - and that's not to fraternize with one's fellow soldiers, regardless of which gender they prefer to get messy with. They are there to defend our Country. Period.

If people can keep their pants zipped and not drool, brag, or even whisper about with whom they wish to sleep with, does it matter? No. Again, they are there to defend our Country. Both sides should be mature.

Just my 2 cents.

[SlinkyTWF]

In my day, there was serious peer and supervisory pressure on enlisted persons to encourage them to engage in promiscuous heterosexual behavior. I understand that after I got out, with an increasing number of women joining the services, there were major crackdowns on the kind of overt sexual harassment I observed, and that many career NCOs got booted out on their asses over it. Funny how that did not seem to hurt unit cohesion in the slightest.

[Bobrobert]

WOW

Good job court.

Maybe.

We will see.

Time is a wonder judge of events.

:-)

[MACS]

.
All of those discharged under the "don't ask, don't tell" policy must be returned to full service with back pay determined by normal time in rank promotions.
.

[marignymitch]

It's great sport among the Supremes to overrule 9th US Circuit decisions. Wait. For. It.

[Orlando]

I think that someone's sexual orientation should be a non-issue and their personal business.

However, if the military wants to reduce the number of gay men joining the ranks, couldn't they change the officers uniform to be a little less 'flamboyant'?

Everytime I see Petrayus or another general with all of the stars, sequines, flair, braids, tassels, etc hanging off of their shirts, it makes this straight man want to shriek "Faaaaaabouloous!!"

Do all of these little do-dad's actually inspire respect in anyone? Or, is it just macho peacock strutting for attention?

When I see them all lined up at some congressional hearing looking so somber and serious in their litle costumes, I half expect them to stand up and give their testimony in song, diva style... a la "I will Survive'.

[SlinkyTWF]

The symbols are important to some. I have never really understood why. Although Garry Trudeau once likened the cornucopia of medals awarded over Grenada (more than 1:1!) to a "Special Olympics for the Military."

[Detestable]

They probably mean more to those wearing a uniform than those that dont. If you see a bronze star or a legion of merit, you probably have no idea what the criteria are to be recommended for it. When we see a gold star on a pair of jump wings, or a combat action/infantry/medic badge, a ranger tab, a divers badge, a purple heart, etc it means a lot.

[LisainNYC]

Good news. Here's hoping for more.

[LazarusLong]

When I served shipboard in the US Navy ('80-'84) approximately 6% of the crew was gay. Everyone, from the Capt. down knew this. It didn't affect morale or performance. It was just a simple fact of life.

Some Americans really need to get over their puritanical backgrounds and get with the 21st century.

[SlinkyTWF]

For some reason, this old Village People song crept into my head. LoL.

[tototo]

"The policy was introduced as a compromise measure in 1993 and approved by then President Bill Clinton who, while campaigning for the Presidency, had promised to allow all citizens regardless of sexual orientation to serve openly in the military, a departure from the then complete ban on those who are not heterosexual. The actual policy was crafted by Colin Powell and has been maintained by Clinton's successor, George W. Bush."

http://en.wikipedia.org/wiki/Don't_ask,_don't_tell

Bill, we remember this betrayal. Along with your Defense of Marriage Act!

[AguynamedWayne]

Bill was actually the first and ONLY president to say that the military's policy of discriminating against gays was wrong. DADT was the first step, a compromise, because the Republicans in the house and senate ruined Bill's entire first year in office over the issue. It was a different time, but still, The Cllintons should be commended for taking the first steps, when no one else would. Hillary Clinton has said she would take the next step and end DADT, which Obama has not said he would do.

[johnfoirdfw]

I am very grateful to the Clintons for their efforts and accomplishments. Seems like a lot of posters here have very short memories.

[SlinkyTWF]

Points taken.

[esquire07]

Gay people should have as much of a right as any other American to kill Middle Easterners for their Oil !!!

[jalapeno]

Good News...Being bullied on the playground is bad enough, bullying our careers and livelyhood will no longer be tolerated.
Nice to see the military having to answer why their minds go straight to the gutter when homosexuality is mentioned.
I assume bisexuals lower morale only halfway??

[fishsandwichesr2good]

I never bullied them on the playground. In fact, I made damn sure they had cutting privileges in the line for the slide -- wouldn't have wanted them behind me on the ladder.

[JLee]

The moment I saw the headline I suspected it was the Ninth Circuit! Looks like good judges are trying to find a way to kill "Don't ask, don't tell" in the courts by making it very hard for the military to defend itself. A judicial back door, if you will.

Personally, I strongly disagree with DADT. It's a bigoted policy that results in the loss of too many qualified personnel at a time when the military is already stretched to breaking point. It's also hugely insulting to the professionalism of men and women in the armed services to insinuate that they can't function with gays around.

That said, I think this ruling is going to be struck down. The Supreme Court is likely to grant certiorari if there's a conflict between appellate courts, and there's no way they won't strike it down. Heck, I think I would strike it down if I were a judge. It's too expansive a reading of the law and directly contradicts the will of Congress, no matter what my personal opinions.

Constitutional grounds on Equal Protection might be one way to strike down the law altogether, but it's going to be very hard. (Jargon: Courts have traditionally given the military policy great deference and discrimination based on sexuality isn't given even intermediate scrutiny, but rationality review.)

No, the one proper and practical way to go after DADT is by changing the law and so the policy. Are you listening, Democrats in Congress?

[jpopphan]

Hold on there.... The "will of Congress" is less important a consideration than whether or not the law passed by Congress and signed by the President is CONSTITUTIONAL.

Because gays and lesbians have been a vilified, hated and abused minority for so long, and because we have only in the past forty years reached some level of freedom to live and be who we are, it has been very easy for social conservatives and religious bigots to promote and pass legislation that is harmful to us. The same thing happened during Reconstruction in the South following the Civil War. Many laws were created to discriminate against blacks. Remember Jim Crowe? Those laws may have reflected the "will" of the legislature that passed them, but their constitutionality was the measure that determined that the laws were not in fact "legal".

By any measure, there is no Constitutional basis for discrimination against any group, period. If the SCOTUS cannot uphold the Constitution and their previous decision in Lawrence vs. Texas, then we may have to follow the instruction of Thomas Jefferson who wrote in the Declaration of Independence,

"Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."

[useyourbrain]

Ahem, that's what the Supreme Court is supposed to do - go against the will of the Congress when it's outstepped it's powers. This is obviously a case where it has. There is no logical reason to keep gays out, just like there was no reason to keep blacks separated.

[dsbsh]

Given that the 9th Circuit did not rule directly on DADT, I'll be a bit surprised if the Supreme Court takes this case. No other circuit has addressed this issue in the military context since the Lawrence decision, and I believe there are currently cases pending in several other circuits. And it's far more likely for the Court to wait for a decision on the merits of the lawsuit.

[DRaymond]

Don't-ask-Don't-tells days are numbered. Even within the military support has disappeared as there is such a shortage for technical specialists (translators, flight nurses, etc). The military has made its overall numbers by reducing standards, but that doesn't find enough technically competent folks for specialist positions.

I predict that no matter who wins in november it will be replaced, first by allowing gays in noncombat units, then maybe later anywhere

[Detestable]

It isnt even that theres a shortage of technical expertise. There are a great number of people that just don't care who you love and how you love them. In uniform you have no sex, no religion, no race, no preference.

[Detestable]

I meant no gender