Witt v. U.S. Air Force

Earlier this week, the 9th Circuit Court of Appeals reinstated the case of Major Margaret Witt, a U.S. Air Force flight nurse who was discharged after 18 years of decorated service when her command learned that she is a lesbian. This decision marks the first time a U.S. Court of Appeals has specifically stated that the military must meet a heightened standard when infringing on a gay service member’s right to privacy.

So what does this mean, exactly, for the future of “Don’t Ask, Don’t Tell (DADT)?” To be honest, we aren’t really sure. I can tell you that all of the lawyers at SLDN were dancing in the hallways when we read the opinion issued by the court. (Okay, maybe it was just me dancing in the halls but we were all pretty excited!). In the short term, the 9th Circuit ruling means that Major Witt will get her day in court. She’ll have the opportunity to tell her story and show that her constitutional rights were violated by the Air Force when she was discharged under DADT. And, because of this heightened standard that the court is now requiring, in order to pass constitutional muster, the government must present evidence showing that Major Witt’s continued service in the Air Force is such a disruption to unit cohesion, good order and discipline that her discharge was justified under DADT and that DADT itself is one of the least intrusive means of addressing Major Witt’s disruption to unit cohesion.

But because the 9th Circuit decision was specific to Major Witt, and was narrowly written to apply to her case only, what this means for the future of “Don’t Ask, Don’t Tell” litigation is unclear. What is inspiring about the court’s opinion is that the 9th Circuit justices not only ruled in favor of Major Witt, but they also took the opportunity to give a clear analysis of why Lawrence v. Texas requires a heightened standard of review, even in a military setting.

In 2004, SLDN, along with co-counsel WilmerHale, filed Cook v. Gates, a constitutional challenge of “Don’t Ask, Don’t Tell” on behalf of 12 service members discharged under the law. Just like Major Witt’s case, Cook was dismissed at the trial court level without a chance to develop any facts. In March of 2007, the Cook plaintiffs made very similar arguments to the 1st Circuit Court as did Witt did to the 9th. With the issuance of the Witt decision, SLDN has great hope that the 1st Circuit will, at the very least, reach the same conclusions as the 9th Circuit and will allow our plaintiffs to have their day in court.

-Emily Hecht

One View from Inside the Courtroom

David at Blue Mass. Group has the view from inside the courtroom during yesterday's oral arguments in Cook v. Gates.

"Both sides argued well," he notes, "and the judges (Jeffrey Howard, a former prosecutor from NH who was appointed by Bush in 2001; Levin Campbell, a senior judge who was appointed to the First Circuit by President Nixon in 1972 after briefly serving as a state and federal trial court judge; and Patti Saris, a Clinton-appointed District Court judge and former federal prosecutor and state trial court judge who was sitting on the Court of Appeals by temporary designation) were obviously well-prepared and understood the significance of the case before them."

"Judge Saris seemed troubled by a number of the positions taken by the government," he adds. "She seemed quite concerned that a portion of the statute in question appears fairly obviously to infringe on protected speech, or at least to be so broad as to chill such speech; and she also noted concern that in light of the broad definition of "homosexual," it would be in practice nearly impossible for any person who self-identifies as gay to avoid discharge -- that is, the policy is not (as the military claims) about proscribed conduct, but rather about one's status as a gay person. The government lawyer labored mightily to get around these problems, but was not able to set them to rest."

"Judge Howard also seemed concerned about the issues Saris noted, as well as the fact that, since the case was decided on a motion to dismiss, the plaintiffs had not had any opportunity to develop a factual record in support of their claims, which he seemed to think made it difficult for the court to answer the questions before it," he writes. "Judge Campbell didn't say much and was harder to read, but he is well regarded as a careful and fair-minded judge."

In the end, David concludes, ". . . prediction based on oral argument is notoriously hazardous, but based on what I saw today, I'd be surprised if the plaintiffs didn't achieve at least a partial victory in the First Circuit."

For more coverage of yesterday's hearing, visit the SLDN press room online.

- Steve Ralls

(Photo from our friends at Towleroad.)

A Promise of 'Liberty and Justice for All'

This morning, many of the plaintiffs in Cook v. Gates, the constitutional court challenge to "Dont' Ask, Don't Tell," are at the First Circuit Court of Appeals in Boston. They are asking the Court to overturn a District Court ruling dismissing their lawsuit, and allow them the opportunity to present their case for ending the ban. This is their statement about today's oral arguments.

"We are grateful today to the First Circuit for hearing our appeal, and considering our request to have our day in court. When we began this journey in December 2004, we were determined to have our stories heard and to present the facts about 'Don’t Ask, Don’t Tell.' Today’s hearing was an important step forward in that journey. Our counsel at Servicemembers Legal Defense Network and the law firm of WilmerHale have worked tirelessly to see justice served, and we are also grateful for their representation and their friendship.

Today, more than ever, our country needs patriotic, qualified men and women to step up and serve. Each of us has done so before, and remains ready to do so again. We continue to believe that service should be based on qualification, and not on outdated prejudices and stereotypes. We know our nation has been made safer by the talents of lesbian, gay, bisexual and transgender Americans and we are honored to be part of that proud tradition of service. We are Americans, too, and we love our country, our freedoms and our government every bit as much as our heterosexual neighbors.

Every day, our military fires another two or three service members simply because of their sexual orientation. We are twelve of the more than 11,000 stories 'Don’t Ask, Don’t Tell' has produced during the past 14 years. Newspapers, television screens and radio broadcasts are filled with stories about the unacceptable consequences of this law: diaries seized; families interrogated; careers terminated . . . all because of a law that serves no useful purpose. This law must end.

This morning, we have come to the First Circuit with unmovable confidence in our nation’s promise of 'liberty and justice for all.' We believe the freedoms we defended as United States military personnel are alive and well in our country. We know our nation can do better than this law.Today, we have asked the First Circuit to move our case for reinstatement forward. We remain confident in that case.

Frederick Douglass, a great American, once said that 'Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.'

We believe our nation is more secure when every qualified American is allowed to serve. Our country supports the service of lesbian, gay and bisexual patriots and the time has come to end 'Don’t Ask, Don’t Tell.'"