US: Ruling
on gay Air Force major creates dilemma
By The Associated Press
03.09.2010 7:00am EST
(Seattle) A pressing legal reality for the
“don’t ask, don’t tell” standard for gays serving in the military is that the
9th U.S. Circuit Court of Appeals has already struck down the way it’s
practiced in much of the Western United States.
The government declined to appeal the ruling by
the three-judge panel, which leaves it standing as law in the nine states
covered by the court. That means gay military members at bases in the West
technically have greater protections than their colleagues across the world. Although it doesn’t appear that the military has
ever applied the more stringent standard, the court case presents several
problems for the Pentagon now that the Obama administration has embarked on a
yearlong review of “don’t ask, don’t tell.” “It’s muddled things up for the military,” said
Rep. Vic Snyder, an Arkansas Democrat who serves on the House Armed Services
Committee. “They really haven’t started grappling with it yet, and I don’t
think they know how to respond.” Defense Secretary Robert Gates acknowledged in
congressional testimony recently that the Pentagon must devise “new rules and
procedures” in response to the San Francisco-based 9th Circuit’s decision. At issue is a ruling in the case of an Air Force
major from Washington state who was dismissed from the military after she was
found to have been in a lesbian relationship. The court ruled that for a gay service member’s
discharge to be constitutional, the military must demonstrate that the firing
promotes cohesion or discipline in the unit. That is a much higher standard than what has
been practiced since the “don’t ask, don’t tell” policy took effect in 1993:
The military simply has to show that the person has engaged in homosexual
activity, made statements about being gay, or tried to marry someone of the
same sex. The two standards represent a thorny issue for
the Armed Forces, and military brass are keenly aware of the dilemma. The military branches say they haven’t changed
how they go about issuing “don’t ask” dismissals in the states covered by the
9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,
Oregon and Washington. But if the military is found to have been
discharging people within the 9th Circuit without applying the higher standard,
it could be forced to pay punitive damages in federal court, some lawyers say. Furthermore, if the military cannot demonstrate a
gay member’s discharge would hurt the unit, that person might end up serving
openly – even as others around the globe continue to be discharged. The military is currently in the midst of a
45-day effort to analyze how to apply “don’t ask, don’t tell” more humanely
through administrative changes to the policy, and the standard is one thing
being looked at. Rep. Snyder suggested that the Defense
Department cure the problem by making the venue for all “don’t ask” dismissals
fall within the 9th Circuit, so that all service members would have the same
rights. The issue is typically referred to as the “Witt
standard,” named after Air Force Maj. Margaret Witt. She was a decorated flight
nurse at McChord Air Force Base in Washington who shared a house in Spokane with
her longtime partner and was honorably discharged two years short of full
retirement. She then sued. A three-judge panel in the 9th Circuit upheld
“don’t ask, don’t tell,” but granted constitutional protections to gay service
members targeted for discharge, saying the military had to show that their
firing furthered the goals of the policy, such as military readiness or unit
cohesion. The decision became law as soon as it was
issued, but it wasn’t until last June that Obama announced that the government
would not appeal. The ruling also reinstated Witt’s lawsuit
against the Air Force, which is headed for trial in federal court in Tacoma. Witt argues that her dismissal actually hurt
troop readiness and morale. There was a shortage of flight nurses at the time,
she says, and one of her colleagues, a sergeant, resigned in protest of her
dismissal. “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,
even in the privacy of their own homes off-base. More than 13,500 service members have been fired
under the law since 1994, according to the Servicemembers Legal Defense
Network, which is lobbying for the law’s repeal. Defense Department figures show 1,047 people
were discharged in 2008 and 2009. It’s not clear how many of those were in the
9th Circuit or how many occurred after the Witt ruling came down. Spokeswoman
Cynthia O. Smith said the department does not have a breakdown of dismissals by
military base. “Given the complexity of the legal issues
involved and the ongoing litigation in the Witt case, DoD is working closely
with the Justice Department to ensure that we are complying with our legal
obligations in the 9th Circuit and elsewhere,” she said. Lt. Col. Victor Fehrenbach, an F-15 fighter
pilot from Idaho, said the Air Force refused to apply the higher standard
during his discharge proceedings last year. “If the burden of proof was on the Air Force to
prove that my presence was detrimental to good order, discipline, morale and
unit cohesion, there would have been a different outcome,” he said. “If the
Witt standard had been followed, I would be continuing to serve with no
problems whatsoever.” When gay service members sued over their
dismissals in the first decade of the policy, courts historically accepted the
military’s argument that having gays in the service is generally bad for morale
and can lead to sexual tension. But the judges in the Witt case said the legal
landscape changed when the U.S. Supreme Court in 2003 struck down a Texas ban
on sodomy as an unconstitutional intrusion on privacy. The 9th Circuit said
that the landmark decision opened the door for the courts to take a fresh look
at the constitutional rights of gay Americans.