Frontlines: The Latest from OutServe-SLDN
Earlier this week, the 9th Circuit Court of Appeals reinstated the case of Major Margaret Witt, a U.S. Air Force flight nurse who was discharged after 18 years of decorated service when her command learned that she is a lesbian. This decision marks the first time a U.S. Court of Appeals has specifically stated that the military must meet a heightened standard when infringing on a gay service member’s right to privacy. So what does this mean, exactly, for the future of “Don’t Ask, Don’t Tell (DADT)?” To be honest, we aren’t really sure. I can tell you that all of the lawyers at SLDN were dancing in the hallways when we read the opinion issued by the court. (Okay, maybe it was just me dancing in the halls but we were all pretty excited!). In the short term, the 9th Circuit ruling means that Major Witt will get her day in court. She’ll have the opportunity to tell her story and show that her constitutional rights were violated by the Air Force when she was discharged under DADT. And, because of this heightened standard that the court is now requiring, in order to pass constitutional muster, the government must present evidence showing that Major Witt’s continued service in the Air Force is such a disruption to unit cohesion, good order and discipline that her discharge was justified under DADT and that DADT itself is one of the least intrusive means of addressing Major Witt’s disruption to unit cohesion. But because the 9th Circuit decision was specific to Major Witt, and was narrowly written to apply to her case only, what this means for the future of “Don’t Ask, Don’t Tell” litigation is unclear. What is inspiring about the court’s opinion is that the 9th Circuit justices not only ruled in favor of Major Witt, but they also took the opportunity to give a clear analysis of why Lawrence v. Texas requires a heightened standard of review, even in a military setting. In 2004, SLDN, along with co-counsel WilmerHale, filed Cook v. Gates, a constitutional challenge of “Don’t Ask, Don’t Tell” on behalf of 12 service members discharged under the law. Just like Major Witt’s case, Cook was dismissed at the trial court level without a chance to develop any facts. In March of 2007, the Cook plaintiffs made very similar arguments to the 1st Circuit Court as did Witt did to the 9th. With the issuance of the Witt decision, SLDN has great hope that the 1st Circuit will, at the very least, reach the same conclusions as the 9th Circuit and will allow our plaintiffs to have their day in court.