In an apparently little noticed opinion, the Ninth Circuit Court of Appeals decided last year in Witt vs. Department of the Air Force (pdf) 06-35644 that the military did not necessarily have the right the throw gays out of the military using as their sole basis Don't Ask Don't Tell legislation (DADT) enacted by Congress back in the early 1990's.
And in a further development that has also gotten little play yet in the
press, except for an article in the Wall Street Journal yesterday:
The Obama administration has decided to accept an
appeals-court ruling that could undermine the military's ban on
service members found to be gay.
That is, they decided not to appeal the Circuit Court's ruling to the
Supreme Court, letting the decision stand.
What does this mean for DADT?
Citing from the decision, the case involves a Major Witt:
In July 2004, Major Witt was contacted by Major Adam Torem, who told
her that he had been assigned to investigate an allegation that she
was homosexual. She declined to make any statement to him. An Air
Force chaplain contacted her thereafter to discuss her homosexuality,
but she declined to speak to him, as well. In November 2004, Major
Witt's Air Force superiors told her that they were initiating formal
separation proceedings against her on account of her homosexuality.
Last year, the Ninth Circuit's judgement was rendered, against citing
from The Wall Street Journal:
A federal appeals court in San Francisco last year ruled that the
government must justify the expulsion of a decorated officer solely
because she is a lesbian. The court rejected government arguments that
the law banning gays in the military should have a blanket
application, and that officials shouldn't be required to argue the
merits in her individual case."
I'm not a lawyer, nor do I pretend to be one on any television show or
blog, so caveat emptor, but as far as I can gather the
Appellate decision relies upon the 2003 Supreme Court ruling, Lawrence vs. Texas, which
held that intimate consensual sexual conduct was part of the liberty
protected by substantive due process under the Fourteenth Amendment.
Prior to Lawrence courts had held that Don't Ask Don't
Tell did not violate any Constitutional rights -- that as long as
Congress had some rational basis for enacting DADT, they were
within their rights to do so. With the publication of the Lawrence ruling, however, the Ninth Circuit decided that rational basis alone was no longer sufficient:
Homosexuals' right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without intervention of
the government...
Having carefully considered Lawrence and the arguments of the parties,
we hold that Lawrence requires something more than traditional
rational basis review and that remand is therefore appropriate...
This leaves open the question whether the Court applied strict
scrutiny, intermediate scrutiny, or another heightened level of
scrutiny.
The Court ended up concluding that while strict strutiny would not be an appropriate level of consideration, a level of heighted-scrutiny found in Sell vs. United States, a case involving forced medication of a mentally-ill prisoner, would be appropriate:
... ((we therefore)) adopt the first three heightened-scrutiny Sell
factors as the heightened scrutiny balancing analysis required under
Lawrence. We hold that when the government attempts to intrude upon
the personal and private lives of homosexuals, in a manner that
implicates the rights identified in Lawrence, the government must
advance an important governmental interest, the intrusion must
significantly further that interest, and the intrusion must be
necessary to further that interest.
Based on their decision the Appeals Court remanded the case back to the
District Court, allowing Witt to proceed with her case.
It would seem that Witt has a strong case. Citing from the decision:
Major Witt is well regarded in her unit, and she believes that she
would continue to be so regarded even if the entire unit was made
aware that she is homosexual. She also contends that the proceedings
against her have had a negative effect on unit cohesion and morale,
and that there is currently a shortage of nurses in the Air Force of
her rank and ability.
If the Air Force cannot demonstrate, in her specific circumstances, that
throwing her out of the military would meet the three criteria noted
above, then it would seem that the court would have to rule that Witt
should not have been thrown out.
If the Air Force cannot successfully argue unit cohesion in this
specific case (see above), it would seem to be left with arguing that
homosexuality in and of itself is an impediment to the military mission,
which, besides being absurd on its face, is belied by Witt's 19 years
of exemplary service.
Of course a ruling either way by the District Court will be appealed,
presumably all the way to the Supreme Court, and that could take
years. Perhaps by the time it makes its way there the issue will have
been rendered moot by the repeal of DADT.
Or not. The Obama administration and many members of Congress would
no doubt like nothing better than for the US Supreme Court to rule
that DADT was unconstitutional, thereby relieving them of any political
fallout from having to advocate and/or pass legislation repealing it.
This case could have the unfortunate unintended effect of giving the
Adminstration and Congress yet another excuse not to act. On the other hand it could be a catalyst to action, a sort of kick in the pants to those who think 'going slow' on fundamental rights is the best policy.