The federal "Don't Ask, Don't Tell" law that prohibits lesbian, gay and bisexual Americans from serving openly in the armed forces has suffered another setback. The Ninth Circuit Court of Appeals refused, on Thursday, to reconsider a recent court decision calling the constitutionality of the law into question. Falling short of the 14 votes needed for a new hearing, the judges of the Ninth Circuit declined to re-visit the case of Air Force Major Margaret Witt. Major Witt was suspended in 2004, and ultimately dismissed from the service in 2007, for her relationship with another woman. In May, the court rejected the government's argument that Witt's dismissal was necessary in order to preserve military readiness. On Thursday, the full Ninth Circuit implicitly agreed by rejecting the Pentagon's challenge to that ruling.
The Ninth Circuit ruling follows campaign pledges by President-Elect Obama to dump the 15-year-old law, and comes on the heels of news that straight service personnel largely do not care about their fellow troops' sexual orientation. A recent Zogby poll, for example, found that, by and large, allowing openly gay service members into the armed forces would be a non-event for those already wearing our nation's uniform. Most already know someone who is lesbian or gay, or believe there are already gay colleagues in their units. And just as the Pentagon was unable to produce a single piece of evidence indicating that Major Witt was anything but a stellar Air Force officer who had the respect of those she served with, the services have also been unable to prop-up the tired and outdated argument that repealing the ban would weaken our nation's forces.
The Ninth Circuit ruling is significant, as it represents a new school of legal thought that stands in stark contrast to rulings in the early-to-mid 90s. Those court opinions largely held "Don't Ask, Don't Tell" to be necessary, constitutional and solidly within the bounds of so-called "military deference." More than a decade later, with overwhelming public support and a growing Congressional consensus for repeal, judges are re-thinking those theories and taking a hard look at how "Don't Ask, Don't Tell" is actually implemented and how our country treats lesbian, gay, bisexual and transgender patriots.
In short, the legal tide is finally turning - along with a political tide gaining momentum thanks to Obama's victory - and the future of "Don't Ask, Don't Tell" has never been more uncertain.
Now, the Pentagon has roughly three months to decide its next steps . . . a decision that will be made as a pro-repeal president prepares to arrive in the Oval Office.
In fact, Major Witt's attorney, James Lobsenz, told The San Francisco Chronicle that "he wouldn't be surprised if the Obama administration asks for an extension of the 90-day deadline to give Congress time to change the law."
That 90-day timeline would be aggressive. Repeal legislation is not likely to move so quickly from the conservative House Armed Services Committee to the House floor. And the Senate has yet to introduce or debate a repeal bill in that chamber. But the message the incoming commander-in-chief has sent from the campaign trail to his presidential transition will undoubtedly be on the minds of those charged with deciding where to go from here. His reminder of the "increasing recognition within the armed forces that this (policy) is a counterproductive strategy" is now shared not only by the public, but by a federal appeals court, too.
The next 90 days could be "telling." Should the federal government decline to challenge Thursday's decision, another significant shift in the legal landscape surrounding the law will surely take place. And should the Pentagon decide to move forward with defending Witt's dismissal, the case law supporting repeal will continue to evolve and, most likely, dramatically change in tone from the mid-90s. Either way, the courts are, at last, flexing their oversight muscle and calling out the fabricated and baseless arguments that have kept "Don't Ask, Don't Tell" on the books for far, far too long.
That, as Lobsenz told the press yesterday, will allow those who have seen the unacceptable consequences of the military ban to finally "unmask the lie" that the law works or can withstand constitutional scrutiny. And in the end, whether its 90 days or 900, the days of "Don't Ask, Don't Tell" are, both legally and politically, most definitely numbered.