Ninth Circuit Rules Against Military's 'Don't Ask, Don't Tell'

July 7, 2008 - 8:06 PM

(CNSNews.com) - The future of the military's "Don't Ask, Don't Tell" policy was cast into doubt on Wednesday.

The Ninth Circuit Court of Appeals in San Francisco ruled that it is no longer enough for the military to state the policy -- which says that "homosexuality is incompatible with military service" -- when it discharges members of the armed services it discovers to be homosexuals.

In a split decision, a three-judge panel ruled that the U.S. Air Force will have to prove why it discharged Margaret Witt, an 18-year Air Force nurse, under "Don't Ask, Don't Tell."

Witt, a major in the Air Force Reserve, was discharged in 2004 when it came to light that she had had a lesbian relationship from 1997 to 2003 with a civilian woman. She filed suit in 2006 challenging her ouster from the Air Force.

The federal district court in Tacoma, Wash., held that "Don't Ask, Don't Tell" policy was not subject to judicial review, and the Air Force didn't have to prove anything other than that she was a homosexual.

But the Ninth Circuit, citing the Supreme Court's 2003 Lawrence v. Texas decision, which struck down state sodomy laws, sent the case back to the lower court, ordering it to reconsider the constitutionality of "Don't Ask, Don't Tell."

"They said there is a significant liberty interest involved here -- they did not say a fundamental interest, but that there was a 'significant' interest, and that the military should have to justify their policy," New York University law professor Arthur Leonard told Cybercast News Service.

The case will go back to trial, at which time, Leonard said, the Air Force will have to prove why Witt herself -- not merely all homosexuals -- is unfit for military service.

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