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View Diary: DADT: Major Witt to return To Air Force! "No important govt interest served by discharge." Updatex6. (320 comments)

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  •  Just look at the history of the Witt case itself (1+ / 0-)
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    The district judge initially dismissed Major Witt's complaint for failure to state a claim.  She appealed to the Ninth Circuit which affirmed in part, reversed in part, and remanded for further proceedings in the district court.  The following is from the Ninth Circuit opinin in Witt:

    [W]e hold that this heightened scrutiny analysis is as-applied rather than facial. "This is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments." City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447 (1985).
    In Cleburne, the Court employed a "type of ‘active’ rational basis review," Pruitt, 963 F.2d at 1165-66, in requiring the city to justify its zoning ordinance as applied to the specific plaintiffs in that case. And Sell required courts to "consider
    the facts of the individual case in evaluating the Government’s interest." 539 U.S. at 180. Under this review, we must determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.

    And this:

    Here, applying heightened scrutiny to DADT in light of current Supreme Court precedents, it is clear that the government advances an important governmental interest. DADT concerns the management of the military, and "judicial deference
    to . . . congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Notably, "deference does not mean abdication." Id. "Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs . . . ." Weiss v. United States, 510 U.S. 163, 176 (1994).

    However, it is unclear on the record before us whether DADT, as applied to Major Witt, satisfies the second and third factors. The Air Force attempts to justify the policy by relying on congressional findings regarding "unit cohesion"
    and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest. Remand
    therefore is required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can DADT be measured against the appropriate constitutional standard.

    Here is a link to the Ninth Circuit's previous decision in Witt:

    The essence of the holding is that DADT isn't per se unconstitutional, but that it may be as applied to a particular member of the armed services, and the decision today simply applied that decision.  Given that decision, I don't understand how any district judge in the Ninth Circuit, who is bound by Ninth Circuit decisions, could issue an injunction saying that DADT was unconstitutional per se, and couldn't be applied anywhere, regardless of the factual circumstances of any particular case.

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