Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
The 9th circuit has ruled in favor of Air Force Major Margaret Witt in an appeal on her discharge under the DADT policy. Witt was discharged after a stellar career in which she was so highly decorated that the Air Force made her a "poster child" and used her image to promote recruiting. She never told anyone in the service that she was gay, but someone ratted her out and she was discharged - 6 months before being eligible for a full pension. See full ruling here.
Witt argued that the DADT policy violates the equal protection clause and substantive due process. The court notes that they have considered such cases before and ruled against them, but not since the ruling in Lawrence v Texas, which Witt argued has changed the precedents in her favor. She's clearly correct, as the Lawrence ruling states:
[Homosexuals'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Now here's where things get interesting. The Lawrence ruling - quite correctly in my view - did not establish a standard of review. That is, it does not state that the court is applying strict scrutiny or a rational basis test. Justice Kennedy ignored that longstanding convention and simply relied upon a general right to liberty. But the ruling makes clear, as the quote above states, that the government must prove a legitimate state interest in order to justify violating that right. This, Witt argued, is virtually identical to applying strict scrutiny.
The court split the difference and decided to apply some form of "heightened scrutiny." And this is important: they determined that the heightened scrutiny had to be analyzed as an "as applied" challenge rather than a facial analysis. That means in order to justify the intrusion in this case, the Air Force cannot merely show that such discharges are generally necessary for maintaining unit cohesion - they have to show that the specific discharge of Witt was necessary for doing so:
Under this review, we must determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.
So the appeals court remanded the case back to district court for arguments on that issue. The Air Force has to show that Witt's presence specifically caused cohesion problems in her unit. That will require interviewing the people in her unit and Witt is absolutely certain that those people will testify the exact opposite, that she was a crucial part of that unit and that removing her has caused problems in the unit (one member of her unit resigned from the Air Force in protest of her discharge).
This is a huge victory. I'm sure it will be appealed and it will be very interesting to see if the Supreme Court takes it and what they do with it if they hear the appeal. Particularly interesting will be seeing how Kennedy, who wrote the Lawrence opinion, votes.
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What gets me is the pettiness of the Air Force's decision. This person gives years of faithful service and they want to kick her out 6 months before being eligible for a full pension. They could have waited the 6 months and quietly asked her to retire. That would still be wrong, but at least it would show that they honestly thought they were responding to a problem that needed to be solved, rather than giving in to knee-jerk homophobia.
Posted by: Taz | May 22, 2008 10:06 AM
This sounds like the courts could effectively end DADT if they don't find evidence of cohesion problems -- or that the military itself may find itself compelled to end it (and let gays and lesbians serve openly) if they don't find evidence of problems. Is this wishful thinking on my part?
Posted by: Greg | May 22, 2008 10:38 AM
I have always assumed DADT would be overthrown as void for vagueness, although I don't think anyone has ever attacked it that way. As applied, the policy is a license for the services to use a gay individual for so long as they are useful; then, if a problem comes up, say they've been outed and toss them. Pretty convenient.
Unfortunately, the Supremes are likely to wave the "rational basis" wand and overturn. How often do they intervene in military policy, after all?
Posted by: kehrsam | May 22, 2008 10:53 AM
Hopefully, by the time the appeals process gets underway, there will be no need to continue as the DADT policy is consigned to the trashcan of history.
Posted by: tacitus | May 22, 2008 10:58 AM
Eagerly awaiting all the 'I support the troops' folks to rally in her support...
Posted by: Ashley Moore | May 22, 2008 11:31 AM
kehrsam, could you explain why you think DADT should be void for vagueness? I'm not following in what way it's too vague, unless you're referring just to its application.
Posted by: James Hanley | May 22, 2008 12:23 PM
Taz: One can only be surprised or shocked at the sheer vicious pettiness of the Air Force's decision to discharge Major Witt only if one fails to realize that the U.S. military, especially the Air Force (through it's academy in Colorado Springs), has become appallingly dominated by right wing fundamentalist theocrats. Absolute, unquestioned assurance of their own righteousness makes people mean - in both senses.
Posted by: G Felis | May 22, 2008 1:19 PM
I'll never rationally understand how this officer's situation *did* violate "don't ask, don't tell." Just who did she tell? She was outed by someone else. She stuck to the idiotic rule that she couldn't go public about her sexual orientation. It was this other person who broke the rules, not her.
And how do the folks who kicked her out get around the fact that *they* broke the rule by ever asking her if she *was* gay?
This is surely one of the most brainless laws/rules in the history of mankind. Taken literally, *no-one* can be discharged for being gay under this provision unless they voluntarily announce their sexual orientation, because it's *against the rules* for anyone to *ask* them!
Posted by: Lynn | May 22, 2008 2:23 PM
Anyone think there is a risk that the Bush Supreme Court and the McCain Supreme Court will overturn Lawrence?
Posted by: Chuck | May 22, 2008 2:37 PM
They can claim they saw you somewhere suspicious. I know of a case -- of course no one asked how the (female) officer happened to have seen (female) subordinate at a gay bar...
argh! It is perfect for vindictive exes :(
Posted by: Kelly | May 22, 2008 3:17 PM
James: Justice Douglas wrote in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)
No, homosexuality is not a crime, but the same principles apply. If the command decides to charge a person under DADT, they can do so at any time (sexual orientation is almost always well-known within one's unit). The mere fact that actions under DADT have dramatically dropped since we invaded Iraq make the facts clear: If it is convenient to keep a gay serviceman, they will; if there is some sort of trouble, they're gone. Very convenient, yes, but a basic denial of due process and equal protection.
Thanks for the question, I should have spelled out the argument better in the earlier post.
Kurt
Posted by: kehrsam | May 22, 2008 3:19 PM
The mere fact that actions under DADT have dramatically dropped since we invaded Iraq make the facts clear
I don't think that's really related to DADT specifically. Randy Shilts pointed out in (pre-DADT) Conduct Unbecoming that such discharges always drop during wartime. Funny, you'd think that's when it would be necessary to "unit morale" at its highest.
Posted by: Narc | May 22, 2008 4:17 PM
Will Air Force Major Margaret Witt get her (well-deserved) pension if she wins this case?
Posted by: Gingerbaker | May 22, 2008 4:21 PM
My cynical self says "how much was her pension due to cost? What other benefits did the initial decision render her ineligible for?" Although her subsequent protests have rather cancelled out the advantages of forcing her out did someone look at the situation and see a potential saving?
Posted by: MadDoc | May 22, 2008 4:44 PM
MadDoc:
While I see your cynical point of view, I would believe the homophobia-driven discharge before the cost-cutting discharge justification. The military is hardly cash-strapped, like say, Social Security.
Posted by: John S | May 22, 2008 10:13 PM
Don't ask, don't tell - one of the most unfortunate legacies from the Clinton administration. Many of these so called compromises is what fractured the Democratic party, IMO. It made me run for Nader in 2000.
Posted by: Hilary | May 23, 2008 9:11 AM
"This is surely one of the most brainless laws/rules in the history of mankind. Taken literally, *no-one* can be discharged for being gay under this provision unless they voluntarily announce their sexual orientation, because it's *against the rules* for anyone to *ask* them!"
They have literally gotten around this by asking coded questions. One soldier who was dismissed under DADT got caught when they asked him if he ever participated in community theater. His answer in the affirmative was to them a generalized admission of gayness, I guess. Enough for them to consider that they had been "told" and gave them license to investigate and confirm.
The point that asking that question in order to ascertain someones Kinsey score violates the DA portion of DADT does not seem to bother them one whit.
Posted by: gex | May 27, 2008 5:18 PM