Court Ruling Puts "Don't Ask, Don't Tell" On Notice

Posted by Daniel DiRito, The All Spin Zone at 12:34 PM on May 22, 2008.

Don’t Ask, Don’t Tell has been the standard used by the military to determine if a gay service person should be discharged from the military ever since the first Clinton administration attempted to completely remove the long standing ban. At the time, the DADT compromise was thought to be the best that could be achieved. Despite the change, countless numbers of loyal and committed service persons have had their careers ended simply because they are gay.

That may be about to change if the ruling of an appellate court is allowed to stand. The ruling states that the government can no longer rely upon the assertion that the discharge should be automatic if a service member’s homosexuality is disclosed. The government has previously argued that once a service person’s homosexuality becomes apparent, it is a threat to unit cohesion and morale. The court ruling disagrees, stating that the government needs to provide evidence to that effect with regard to the individual being discharged.

From The Associated Press:

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 9th U.S. 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.

Wednesday’s ruling led opponents of the policy to declare its days numbered. It is also 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.

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.

“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 M. Gould.

One of the judges, William C. Canby Jr., issued a partial dissent, saying that the ruling didn’t go far enough. He argued that the Air Force should have to show that the policy itself “is necessary to serve a compelling governmental interest and that it sweeps no more broadly than necessary.”

While the ruling is encouraging, abandoning DADT and removing any restrictions on gays serving in the military may still be a lengthy process. Given the apparent shortage of military personnel, one would think the decision would be an easy one to make.

The recent comments of Mike Mullen, the chairman of the Joint Chiefs of Staff, are an indication that the opposition to removing DADT is waning and that the military establishment may not resist its removal should that happen under the next president. Given the need for more troops, perhaps pragmatism has set in. Hopefully this new ruling will accelerate the transformation.

Cross-posted at Thought Theater

Tagged as: military, don't ask don't tell, glbt, dadt