After previously ruling against her and then holding a two-week bench trial, U.S. District Judge Ronald B. Leighton’s ordered her reinstated. He was previously told by the Ninth Circuit in a reversal to look at Witt’s individual case to determine if she is a threat to military readiness and morale. He found instead that her termination was itself a threat to military readiness and that “good flight nurses are hard to find.”
Leighton held that “The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion.”
The elegant aspect of this decision is that, while it was easy to dismiss gays and lesbians as an abstract and monolithic group, the judge could not maintain such a view once he was required to look at Witt as an individual. He reportedly choked up in the courtroom as he recounted her ordeal.
As I mentioned last night on Rachel Maddow, this could prove a watershed moment. If replicated, the Witt standard could effectively shutdown DADT since the Administration has struggled to avoid such individual reviews — relying on sweeping deference to military claims regarding the impact of gays in the military.
The celebration was muted a bit, however, with news that the Obama Administration is seeking to limit the historic ruling by Judge Virginia Phillips finding DADT unconstitutional and imposing an injunction on its enforcement.
The Obama Administration could have simply let it stand — particularly after the Senate refused to rescind DADT this week. Instead, it has appealed to the judge to reverse her decision on the injunction and not to enjoin DADT nationally (limiting the impact to the plaintiffs in the case).
The Administration has still not responded to the courageous letter sent by Senators Kirsten Gillibrand (D., N.Y.) and Mark Udall (D., Colo.) to drop any appeal to the Ninth Circuit. Unfortunately, only two Senators signed this letter but it is clearly within Holder’s authority not to appeal the decision. The move to limit the ruling, however, is highly disappointing. This is not a decision that can be attributed to political barriers. While advocates have long charged that the Administration has only half-heartedly supported efforts to rescind DADT, there were no political barriers prompting the filing this demand to limit the impact of the case.
Once again, while complaining about “lethargy” among liberal voters, the Administration should consider its failure to give civil libertarians, gays and lesbians, and others a reason to fight after years of such decisions against their core values.
Source: LA Times
Jonathan Turley