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

By Jeralyn, Section Court Decisions
Posted on Wed May 21, 2008 at 10:33:00 PM EST
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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.]

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Court Reinstates"Don't Ask Don't Tell" Lawsuit | 15 comments (15 topical)

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I can't think of many military folk (5.00 / 1) (#2)
by Kathy on Wed May 21, 2008 at 08:44:07 PM EST

during war time who worry about whether the guy toting a rifle alongside them in 6 billion degree heat is gay or not. Mostly, they are glad he's there because they know he's going to help keep them from getting shot.

The real problem... (none / 0) (#5)
by Alec82 on Wed May 21, 2008 at 09:56:20 PM EST

...is that there are members of the armed forces who might want him to be shot.

It obviously isn't an intractable problem; other countries haven't had much of a problem with integrating gay soldiers, although the data is difficult to interpret because they may closet themselves in that environment.

I haven't read the decision, but it would apparently overrule earlier Ninth Circuit precedent (from what I remember). And btw, the link is incorrect.


: There are always a few nitwits (none / 0) (#14)
by lisadawn82 on Thu May 22, 2008 at 10:14:37 AM EST

But most people in the service don't give a d*mn who you're sleeping with. All they want to know is if you're doing your job.
I'm retired after twenty in the Navy and almost everyone suspected that I was gay. No one asked because they truly didn't care. I did my job well and that's all they cared about.
The only thing that I was worried about was that one in one hundred jerk who would try and ditch my career with his/her suspicions.

Been there (1.00 / 0) (#15)
by jimakaPPJ on Thu May 22, 2008 at 12:38:21 PM EST

Before I start let me note that I have commented many times on gay rights, including marriage and I am uncomfortable with the current "don't ask don't tell." Now to some thoughts.

Having spent 10 years in naval aviation long before "don't ask don't tell," I can tell you that no one cared what the sexual orientation of the other person was outside of a few individuals. The issue was: Can the person do the job.

Believe it or not, the military is composed of fairly small units responding to orders of larger units. Squad to platoon to company, etc., in the army, similar in the Navy, Marines and Navy. This structure has not changed. The success or failure of these "fighting units" depend on many variables. But chief among them is absolute confidence in each other. I have seen crew members who could do the job rejected by the crew as a whole for, in some cases, no visible reasons. In the end, the person either becomes part of the group or must leave. Strangely enough, in many cases the individual recognizes this and asks for a change, and goes on to another group and many times succeeds.

In the ten years of my service I knew of about 11 individuals who I felt were gay. Of the 11, 2 were arrested off base for solicitation of homosexual sex, and two on base for consensual homosexual sex. All received undesirable discharges.

Of the other 7, and I would say there were others, there were no problems. Simply put, the standard was "don't ask, don't tell and don't get caught."

In reality that has not changed.

And in reality the issue is not a military problem but a societal problem. When gays are accepted with no exceptions as civilians, no problems will exist in the military. Unfortunately we aren't there yet.

Will forcing the issue in the military correct the problem?

I confess that I do not know. But I do know that if you take a group that is performing well and insert someone that the group doesn't accept then you have a group that will start to be less effective. This is not good in the civilian world. It is a formula for disaster in a military. And the reason does not matter.

In this life we all become engaged in trade offs. We join teams that demand we practice at certain times in certain places and that we do certain things as team members. In my youth football practice was without water (how stupid) and infractions, such as the coach believing you had been smoking, punished by running laps in full uniform while coach sat and enjoyed a cigarette. Today such actions would not be acceptable.

When you join the military you accept the rules. You have no "right" to join. Perhaps the individual should accept the rules and go forward with their life.

Perhaps it is time to the tell military that their rule is wrong. But let us understand something.

If you do you will not know what the results are until the next time the results must be equal to are better than they are now.

The current rules are hard on the individual, but the results are an outstanding military. Be careful what you ask for. You may not like what you get.

Awesome... (none / 0) (#1)
by mike in dc on Wed May 21, 2008 at 08:37:09 PM EST

...too bad SCOTUS will find a reason to strike it down.

I've always wondered what it must feel (none / 0) (#3)
by tigercourse on Wed May 21, 2008 at 08:59:15 PM EST

like to be at the center of such an important legal case, one that not only obviously effects you, but might also have much wider implications.

another reason to vote for (none / 0) (#4)
by dem08 on Wed May 21, 2008 at 09:34:28 PM EST

Hillary and not Obama.

you conveniently forget that clinton didn't (none / 0) (#7)
by cpinva on Wed May 21, 2008 at 10:47:03 PM EST

have a lot of choice in the matter; congress would never pass his legislation, and would easily have overriden a veto by him of harsher law. at the time, "don't ask, don't tell" was actually pretty ground breaking for the US military.

unfortunately, this opinion won't survive the current USSC, who will overturn on the grounds that the military is in the sole position of judging what's best for it, not the people that provide the tax monies to finance it.


: He wasn't interested... (none / 0) (#9)
by Alec82 on Wed May 21, 2008 at 11:38:23 PM EST

...in having Senator Boxer organize the Democrats, either. He is far from sympathetic on this issue. Far from principled. See, for example, his endorsement of DOMA in his rather cynical 1996 campaign.
On the other hand, Senator Dole is really responsible.

Sam Nunn? Who iff VP would be a total dealbreaker (none / 0) (#16)
by jawbone on Thu May 22, 2008 at 04:02:24 PM EST

for me.

He kneecapped Bill Clinton for instituting a change he had promised and campaigned on. The public voted for him, knowing he would permit gays to stay in the military.

Sam Nunn, along with some others, attacked Clinton immediately upon his delineating exactly what he would do.

Congressional opposition to lifting the ban on gay and bisexual people in the armed forces was led by Democratic Senator Sam Nunn of Georgia who organized Congressional hearings that largely buffed the armed forces position that has remained unchanged since the 1981 directive. While Congressional support for reform was led by Democratic Congressman Barney Frank of Massachusetts, who fought for a compromise, and retired Republican Senator Barry Goldwater, who argued for a complete repeal of the ban. After a large number of people flooded the Congressional phone lines with oppositions to lifting the ban, President Clinton soon backed off on his campaign promise to lift the ban on homosexual and bisexual people in the armed forces. The final result was a Congressional compromise of "Don't ask, don't tell" that was later amended to include "don't harass". ~~From Wikipedia.

This was the first big Democratic pushback against the Clinton presidency and, imho, is partly responsible for Congressional attitude going forward. I despise Sam Nunn: He possibly could argue he was trying to protect his electability in a Deep Sothern state, he subsequently left the Senate.

I have not forgotten and I will not forget.


All this pandering to bigots (none / 0) (#8)
by nellre on Wed May 21, 2008 at 10:51:11 PM EST

Must stop.
If you don't want to serve beside folks who happened to born gay, or black, or female... don't enlist.

: For that matter.... (none / 0) (#12)
by kdog on Thu May 22, 2008 at 08:47:00 AM EST

if you don't want to occupy foreign lands or be used as a pawn in geopolitical games, don't enlist.

Great (none / 0) (#10)
by LefterNutter on Thu May 22, 2008 at 07:22:42 AM EST

Awesome, it should be reinstated. Its nobodys business what a person does on their own time and in the privacy of their own home.

JT
http://www.anondo.alturl.com

Excuses, Excuses (none / 0) (#11)
by S1 on Thu May 22, 2008 at 08:12:08 AM EST

The military's last line of defense of it's anti-gay policies will be "unit cohesion," which basically boils down to "we have to kick the gays out so homophobes in their units don't get upset."

Change the noun from "gays" to "Negroes" and you have the same argument used against integrating the armed forces in the late 1940s. "There's nothing wrong with 'those people'," it was said, "It's just that their presence might upset Southern boys who wouldn't want to serve and fight alongside the 'Colored'."

Well, the military was wrong then, and it sure as hell is wrong now!

IMO a fabulous happening (none / 0) (#13)
by Militarytracy on Thu May 22, 2008 at 09:02:48 AM EST

There are all sorts of sexual relationships that CAN actually affect unit cohesiveness but since the Lt. Col. was a man and the female pilot "under his command" was a um woman....nobody lost their job. A lot of unit cohesiveness was lost though but losing unit cohesiveness due to heterosexual sexuality is ummmm not as bad as having gay people working hard and doing a good job in your general vicinity.......help, I'm livin in idiotville.