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Decision muddles ‘don’t ask’ policy

Sun., March 7, 2010

9th Circuit ruling imposes higher threshold for discharge

SEATTLE – A pressing legal reality for the “don’t ask, don’t tell” standard for gays serving in the military is that the 9th U.S. Circuit Court of Appeals has already struck down the way it’s practiced in much of the western United States.

The 2008 ruling, while largely overlooked, would force the military to apply a much higher threshold in determining whether a service member should be dismissed for being gay.

The government declined to appeal the ruling by the three-judge panel, which leaves it standing as law in the nine states covered by the court. That means gay military members at bases in the West technically have greater protections than their colleagues around the world.

Although it doesn’t appear that the military has ever applied the more stringent standard, the court case presents several problems for the Pentagon now that the Obama administration has embarked on a review of “don’t ask, don’t tell.”

“It’s muddled things up for the military,” said Rep. Vic Snyder, an Arkansas Democrat who serves on the House Armed Services Committee. “They really haven’t started grappling with it yet, and I don’t think they know how to respond.”

Defense Secretary Robert Gates acknowledged in congressional testimony recently that the Pentagon must devise “new rules and procedures” in response to the San Francisco-based 9th Circuit’s decision.

At issue is a ruling in the case of an Air Force major from Washington state who was dismissed from the military after she was found to have been in a lesbian relationship.

The court ruled that for a gay service member’s discharge to be constitutional, the military must demonstrate that the firing promotes cohesion or discipline in the unit.

That is a much higher standard than what has been practiced since the “don’t ask, don’t tell” policy took effect in 1993: The military simply has to show that the person has engaged in homosexual activity, made statements about being gay, or tried to marry someone of the same sex.

The military branches say they haven’t changed how they go about issuing “don’t ask” dismissals in the states covered by the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The military is currently in the midst of a 45-day effort to analyze how to apply “don’t ask, don’t tell.”

Rep. Snyder suggested that the Defense Department cure the problem by making the venue for all “don’t ask” dismissals fall within the 9th Circuit, so that all service members would have the same rights.

The issue is typically referred to as the “Witt standard,” named after Air Force Maj. Margaret Witt. She was a decorated flight nurse at McChord Air Force Base in Tacoma who shared a house in Spokane with her longtime partner and was honorably discharged two years short of full retirement. She then sued.

A three-judge panel in the 9th Circuit upheld “don’t ask, don’t tell,” but granted constitutional protections to gay service members targeted for discharge, saying the military had to show that their firing furthered the goals of the policy, such as military readiness or unit cohesion.

The decision became law as soon as it was issued, but it wasn’t until last June that Obama announced that the government would not appeal.

The ruling also reinstated Witt’s lawsuit against the Air Force, which is headed for trial in federal court in Tacoma.

Witt argues that her dismissal actually hurt troop readiness and morale. There was a shortage of flight nurses at the time, she says, and one of her colleagues, a sergeant, resigned in protest of her dismissal.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity, even in the privacy of their own homes off base.

More than 13,500 service members have been fired under the law since 1994, according to the Servicemembers Legal Defense Network, which is lobbying for the law’s repeal.

Defense Department figures show 1,047 people were discharged in 2008 and 2009. It’s not clear how many of those were in the 9th Circuit or how many occurred after the Witt ruling.

Lt. Col. Victor Fehrenbach, an F-15 fighter pilot from Idaho, said the Air Force refused to apply the higher standard during his discharge proceedings last year.

“If the burden of proof was on the Air Force to prove that my presence was detrimental to good order, discipline, morale and unit cohesion, there would have been a different outcome,” he said. “If the Witt standard had been followed, I would be continuing to serve with no problems whatsoever.”

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