Court limits discharge of gays from military
Gene Johnson, Associated Press, Thursday, May 22, 2008
The military cannot automatically discharge people because they're gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal.
The three judges from the Ninth Circuit Court of Appeals did not strike down the military's "don't ask, don't tell" policy. But they reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion.
The "don't ask, don't tell, don't pursue, don't harass" policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.
Wednesday's decision is the first appeals court ruling in the country that evaluated the policy through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.
When gay service members have sued over their dismissals, courts historically have accepted the military's argument that having gays in the service is generally bad for morale and can lead to sexual tension.
But the Supreme Court's opinion in the Texas case, the judges said, requires more scrutiny over whether "don't ask, don't tell" is constitutional as applied in individual cases.
Under Wednesday's ruling, military officials "need to prove that having this particular gay person in the unit really hurts morale, and the only way to improve morale is to discharge this person," said Aaron Caplan, a staff attorney with the American Civil Liberties Union of Washington state, who worked on the case.
Witt was suspended without pay in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. Witt was honorably discharged in October 2007 after having put in 18 years - two short of what she needed to receive retirement benefits.
She sued the Air Force in 2006, but U.S. District Judge Ronald Leighton dismissed her claims, saying the Supreme Court's ruling in Lawrence vs. Texas did not change the legality of "don't ask, don't tell."
The appeals court judges disagreed.
"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," wrote Judge Ronald Gould.
