The Ninth Circuit has handed down an important decision on gay rights and the military. The three-judge panel did not strike down the “don’t ask, don’t tell” policy but it did reinstate the lawsuit of Major Margaret Witt, a decorated Air Force nurse. The ruling forces the government to prove that the policy advances an important government interest.
The opinion builds on the decision in Lawrence v. Texas (2003) and recognizes that the policy infringes on Witt’s constitutionally protected rights.
The policy was codified by Congress in 1993.
Witt worked as a flight nurse based at McChord Air Force Base near Tacoma. She did not “tell” but the military “asked” after a malicious tip that she was in a lesbian relationship with a civilian woman. She was given an honorably discharged in 2007 after having put in 18 years – two short of what she needed to receive retirement benefits.
The panel ruled that “When the government attempts to intrude upon the personal and private lives of homosexuals, 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.”
One of the interesting aspects of the case is that Witt’s lesbian relationship was separate from her duties with a civilian woman. It took a tip to “out” her. As a nurse with a private relationship, it is hard to see how she was a threat to military order or discipline.
Writing for the majority, Judge Gould applies a heightened scrutiny and finds that the military must shoulder the burden:
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.11 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 constitu-
This decision may also force the issue into the presidential election, forcing John McCain to take a new look at the policy.
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