9th Circuit Deals Blow to Military's 'Don't Ask, Don't Tell' Policy

Dan Levine

The Recorder

The rational basis test is on a losing streak.

Less than a week after the California Supreme Court declined to use that analysis in arriving at its historic same-sex marriage ruling, the 9th U.S. Circuit Court of Appeals rejected rational basis in an opinion that allows a decorated Air Force major to continue her challenge to the military's "Don't Ask, Don't Tell" policy.

It's the first appellate court in the country to review the "Don't Ask" policy since the U.S. Supreme Court struck down an anti-sodomy statute in Lawrence v. Texas, 539 U.S. 558 (2003). Under Lawrence, the 9th Circuit said Wednesday, "Don't Ask" must be subjected to something more stringent than the rational basis test.

While the 9th Circuit declined to apply strict scrutiny to the law regulating homosexuals in the military, the intermediate standard outlined by Judge Ronald Gould on Wednesday had gay rights advocates cheering.

Instead of merely demonstrating that the state had a rational basis for enacting "Don't Ask, Don't Tell," the government must now show that discharging Margaret Witt under that policy would significantly further the state's interest in maintaining unit discipline -- and that less-intrusive alternatives are unavailable, Gould wrote.

"Indeed, the facts as alleged by Major Witt indicate the contrary," the judge wrote in a footnote. "Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion."

Judge Susan Graber joined Gould's ruling, which remands the case for further evidence-gathering under the new standard. Senior Judge William Canby Jr. found the majority's opinion "very praiseworthy, as far as it goes." He argued in favor of the strict scrutiny test.

Witt joined the Air Force in 1987 and served as a combat flight nurse. The government literally made her its poster child, using her photos in recruitment materials. She won several medals, including one from President Bush, said her lawyer, James Lobsenz of Seattle-based Carney Badley Spellman.

During that time, Witt lived with a civilian woman 250 miles from base and says she didn't tell anyone in the Air Force she is gay. Yet following an allegation in 2004 about Witt's homosexuality, the military suspended her less than a year shy of qualifying for a lifetime pension. She eventually received an honorable discharge.

"When the Air Force decided to discharge her, they didn't seem to care that the need for combat flight nurses was their greatest [personnel] need at the time," Lobsenz said.

A Justice Department spokesman said government lawyers were reviewing the ruling and had made no determination about what to do.

"For over 25 years ... this Court and all other courts of appeals to address these issues have consistently upheld both the current statute and the previous, more restrictive regulatory policy prohibiting homosexual acts by military personnel," Justice Department attorney Anthony Steinmeyer wrote in his brief.

But the plaintiffs argued -- and Gould agreed -- that the U.S. Supreme Court's reasoning in Lawrence required a higher level of constitutional scrutiny than has previously been applied to "Don't Ask, Don't Tell."

The majority was careful not to read Lawrence as commanding strict scrutiny, a standard Gould wrote would likely eviscerate the military's policy altogether. Canby, meanwhile, argued that nothing in Lawrence prohibited the 9th Circuit from adopting strict scrutiny.

While Lambda Legal filed an amicus curiae brief urging strict scrutiny, legal director Jon Davidson praised the court's "modest" ruling, which he said was less likely to trigger U.S. Supreme Court review.

"It's incredibly significant in terms of eventually dismantling ‘Don't Ask, Don't Tell,'" Davidson said. "To the extent we can show people can serve openly with no threat to unit cohesion, it calls into question the whole rationale for the policy."

The case is Witt v. Department of the Air Force, 08 C.D.O.S. 6117.