[COMMENTARY] This week’s ruling by the U.S. 9th Circuit Court of Appeals in favor of Air Force Maj. Margaret Witt in her challenge to the Pentagon’s “Don’t ask, don’t tell” policy, if it stands, would be a huge victory for equality in America.
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. Among awards she won were the Meritorious Service Medal, the Air Medal, the Aerial Achievement Medal and the Air Force Commendation Medal. She never told anyone in the service that she was gay, but someone ratted her out and she was discharged — six months before being eligible for a full pension.
Witt sued, arguing that the “Don’t ask” policy violated her constitutional rights under the equal protection clause of the 14th Amendment (which prevents discrimination under the law). The courts have heard such arguments before many times and had never ruled for them, but most of those cases were prior to the 2003 Lawrence v. Texas ruling, which overturned state laws against sodomy. Witt’s attorneys cited the reasoning in that ruling as changing the legal landscape. That ruling noted:
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[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.
The district court dismissed Witt’s case, but the court of appeals overturned that decision and remanded the case back to the lower court for a full trial. The important thing is that the appeals court seemingly made it all but certain that Witt should win because of the way it instructed the lower court in how to evaluate the case. The appeals court said:
We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas], the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.
But even more importantly, the appeals court ordered the lower court to hear the case as an “as applied” challenge to the law rather than a facial challenge (which means the court is evaluating how the law is being applied, not the validity of the law itself), saying, “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.” That means that it isn’t enough for the Air Force merely to argue that discharging gays and lesbians in general is good for morale or unit cohesion; it has to show that the discharge of Witt specifically was necessary to do those things.
Showing that will be nearly impossible. All of the members of Witt’s unit have strongly supported her in this case and will likely testify that not only was removing her not necessary for unit cohesion, but that her removal has caused serious problems for the unit. One other member of her unit even resigned in protest of her discharge.
This is a significant victory for equality in America, but it may not stand. The 9th Circuit, which covers the West Coast states, is considered the most liberal appeals court in the nation, and the Air Force is likely to appeal this ruling to the Supreme Court, which I suspect will agree to hear the appeal. The Supreme Court is highly divided politically, with a likely four votes on each side of this issue. The key will be where Justice Anthony Kennedy, who wrote the Lawrence decision, comes down. Will he follow the logic of his own precedent? Time will tell.
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