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Military's 'Don't Ask, Don't Tell' Anti-Gay Policy Dealt Major Blow

By L.K. Regan

The military's controversial "Don't ask, don't tell" policy was dealt a damaging blow on Wednesday by the 9th Circuit Court of Appeals, which ruled that the policy violates the U.S. Constitution, reported the Associated Press. The court's ruling applied to the particular case of Marjorie Witt, an Air Force major who was forced out two years before her full retirement when it was revealed that she had a female partner. Witt, a flight nurse, was dismissed despite her stellar record and a shortage of qualified nurses.

"Don't ask, don't tell" is the U.S. military's policy of not seeking information about the sexual orientation of personnel, yet automatically discharging anyone who discloses his or her homosexual status on the grounds that homosexuality constitutes a threat to the morale, discipline, and unit cohesion of the force.

The 9th Circuit's three-judge panel did not actually declare "Don't ask, don't tell" unconstitutional in its own right. Rather, the panel ruled that the policy would have to be applied on an individual basis. In other words, the military would need to demonstrate not merely that the presence of gay or lesbian people in the ranks was damaging to military morale, but that the presence of a particular gay or lesbian person was damaging to morale. A presidential citation described Witt's service in Afghanistan in 2003 by saying, "Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions." Against this backdrop, proving her corrupting influence was an uphill battle, and the 9th Circuit judges found themselves unconvinced.

The decision was noteworthy for its use of recent judicial opinion as a foundation. The justices particularly cited the case of Lawrence v. Texas, a 2003 Supreme Court decision ruling that the government could not violate an individual's right to privacy. Lawrence v. Texas addressed the arrest of two gay men for performing consensual anal sex in a private residence, an arrest that the state justified under blanket anti-sodomy laws. The court was unconvinced that prevention of private sex acts constituted a compelling state interest, and in fact decided that such private conduct was specifically protected by the Constitution. As the Lawrence decision reads, "the intimate, adult consensual conduct at issue [in Lawrence v. Texas] was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections."

Wednesday's 9th Circuit ruling uses Lawrence as its foundation, arguing that, as judge Ronald M. Gould wrote in his opinion, "When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest." For the case of Major Witt, this would have meant a demonstration that her particular homosexual conduct—rather than the mere fact of her homosexuality—was damaging to her military unit, and therefore to the state's interests. While the ruling leaves "Don't ask, don't tell" in place as policy, it does so by a thread—any dismissed gay service member can, according to the reasoning of the ruling, sue in court for redress on the grounds that, though he or she may be LGBT, that fact was not in any way destructive to the military's interests. With a flood of such cases on its hands—many of them potentially brought by brave and decorated service members like Major Witt—gay activists (and sane people in general) have reason to hope that the government might see that its policy is not only wrong, but more trouble than it is worth.

If you are an LGBT service person and want to learn more about your rights, visit the Servicemembers Legal Defense Network.