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Things are Looking Up: Judges Becoming Intolerant of Anti-Gay Laws

By L.K. Regan

It's been a rough couple of weeks for gay rights on the legislative front. A Don't Ask Don't Tell repeal went down to defeat in the Senate, and despite promises from Democratic leadership that they would push the repeal through after the election, most gay activists doubt that the political will will be in place. But even as faith in Congress is on the wane, courts are stepping up on gay rights. Verdicts over the last couple of weeks have suggested that the judicial tide has turned: many judges simply do not intend any longer to tolerate gays' unequal treatment under the law.

Since DADT is much on everyone's mind these days, let's start there. Last Friday, a federal judge in Tacoma, Wash. ruled in favor of a lesbian Air Force Reserve Major—and flight nurse, no less—who had been dishonorably discharged in 2007 under DADT. "Good flight nurses are hard to find," Judge Ronald B. Leighton wrote in his opinion, and Reserve Major Margaret Witt was an "exemplary officer." And Judge Leighton went one step farther, insisting that Witt be "reinstated at the earliest possible moment."

Witt's case is a particularly ugly case of DADT implementation, because despite the fact that, as Judge Leighton writes, she was "an integral member of an effective team," and that, "her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission," her discharge stemmed from a vengeful episode of outing. After 16 years in the military, Witt had an affair with a married woman in 2003. The woman's husband contacted the military and outed Witt a year later. After an extended investigation, she was discharged in 2007.

Judge Leighton targeted his ruling particularly at Margaret Witt and her military status, ordering only that she, and not all of the thousands of service personnel discharged under DADT, be reinstated. But his ruling triangulates with that of California U.S. District Judge Virginia A. Phillips, who earlier this month ruled DADT unconstitutional in general, and is considering an injunction against its enforcement nationwide—an injunction that the Justice Department will certainly appeal. No one knows where this current DADT litigation will end, as courts and federal agencies face off—but the fact that they are facing off means that we are finally, after so long, seeing genuine movement.

And the movement isn't just on the military front. Check out the latest from Florida, where a federal court has overturned that state's ban on gays and lesbians adopting children. In an echo of federal court judge Vaughn Walker's Prop 8 ruling in California, a three-judge panel of the Third District Court of Appeal held that the old ideas about gays being bad parents are worse than unproven—they're discriminatory and wrong. The ruling left the state's child welfare administrators in a scramble to think up new, compliant rules—and ironically enough, the one they came up with is effectively "don't ask, don't tell." From now on, Peter Digre, assistant secretary for operations of the Department of Children and Families (DCF) told his agency's administrators, "you are no longer to ask prospective adoptive parents whether they are heterosexual, gay or lesbian, nor are you to use this as a factor in determining the suitability of applicants to adopt." Instead, he wrote, "Focus your attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children."

Florida's law was the last of its kind in the country, and the suit that was brought against it showcased how such legislation, if allowed to stand, rips apart families and communities at the places where they are most fragile. The Florida suit was brought on behalf of Frank Martin Gill, a gay man from Miami who in 2008, with the approval of a judge, adopted to children that he had been fostering. But the state's DCF appealed that judge's decision, arguing that, while Gill might have been suitable as a foster parent, the state had a relevant interest in preventing him from adopting.

That argument is idiotic on its face. And yet, in a 2004 ruling a different federal court had held that the state could forbid adoption while permitting fostering because foster care had "neither the permanence nor the societal, cultural and legal significance as does adoptive parenthood." Last week, the judges of the Third District Court of Appeals said that, to the contrary, "It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on adoption by those same persons."

Times, they are a-changing, and in the courts they suddenly seem to be doing so at a rapid clip. It's about time.