Legal Commentary

Court Reinstates"Don't Ask Don't Tell" Lawsuit

By Jeralyn

The 9th Circuit Court of Appeals overturned a trial court's dismissal of a "Don't Ask, Don't Tell Lawsuit."

A decorated Air Force nurse who lost a challenge to the military's "don't ask, don't tell" policy and was fired for having a lesbian relationship will get another chance to state her case before a judge.

A panel of the 9th U.S. Circuit Court of Appeals said it was unclear whether the military's policy, as specifically applied to Witt, would hurt unit cohesiveness, as the Air Force had argued in winning its case in July 2006 in U.S. District Court.

"The government now has to make a showing that it can't possibly make" -- that Witt's presence causes a problem in her unit -- given that those who worked with her in the military supplied her with glowing recommendations and outrage at her ouster, said James Lobsenz, part of her ACLU legal team.

The decision means the military can't automatically discarge gay servicepersons. Maj. Margaret Witt's lawyers think she will prevail the next time around. [More...]

The government's position was that the policy prevailed in all cases involving homosexual service members if it "made sense" in only a single case, Lobsenz said, but the appeals court said the government must meet a higher test and prove the sexual orientation of Witt in particular would cause harm.

That's unlikely, he said, based on affidavits from about 10 members of her unit who said that, whether they knew or suspected she was a lesbian, it made no difference in the quality of her work. The members said they wanted her reinstated, with some threatening not to re-enlist.

The AP reports:

It's the first appeals court ruling in the country that evaluates "don't ask, don't tell" in light of Lawrence v. Texas, the Supreme Court's 2003 decision that struck down that state's ban on gay sex as an unconstitutional intrusion into people's privacy, legal experts say.

Passed by Congress in 1993, "don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.

The 9th Circuit opinion is available here.

[Hat tip How Appealing.]

Full post as published by TalkLeft on May 22, 2008 (boomark / email).