HRC Back Story

Sarah Warbelow (pictured below), our Justice for All fellow, writes up the Wednesday Ninth Circuit Court of Appeals decision that struck a blow against the military's "Don't Ask, Don't Tell" anti-gay policy:

Once again California is at the forefront of significant potential changes for GLB Americans.

Major Margaret Witt served 18 years in the U.S. Air Force as a flight nurse receiving numerous distinctions. Two years short of retirement with full benefits she was dismissed because the military received a tip that she was in a long-term relationship with a female civilian. Maj. Witt’s distressing story has been all too common under the Military’s “Don’t Ask, Don’t Tell” policy (DADT), yet a shift in the courts may well be under way. On Wednesday, the U.S. Court of Appeals for the Ninth Circuit in California ruled that Maj. Witt can continue to pursue her case challenging her discharge and that the military must show it has an important reason for her dismissal.

It is important to be aware that the 9th Circuit did not overturn DADT, but the language of the court limits its usage.  Most notably, the military is required to demonstrate that each individual, such as Maj. Witt, has a negative impact on his/her unit because of his/ her sexual orientation. It is no longer enough for the military to argue that GLB service members in general hurt overall morale in the military. In addition, the court has changed how individuals discharged under DADT are considered by the court. This shift in language means that it is more difficult for the government to justify treating GLB service members differently from straight service members. In this instance, the 9th Circuit is treating sexual orientation as roughly analogous to sex, but stops short of giving sexual orientation protections similar to race.

The case may be appealed to the U.S. Supreme Court and other Circuit courts need not follow the ruling, but the willingness of one of the highest courts in the United States to increase the protections offered GLB service members is a huge step towards equality under the law. The case is a definite victory!