MAY 19, 2009
Obama Avoids Test on Gays in Military
By JESS BRAVIN and LAURA MECKLER
WSJ
WASHINGTON -- The Obama administration has decided to accept an appeals-court ruling that could undermine the military's ban on service members found to be gay. A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case. The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there. The move "takes the issue off the front burner," as a trial and subsequent appeals could take years before the question returns to the Supreme Court, said an official familiar with the matter.
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In the appeals court case last year, the Bush administration argued that Air Force Maj. Margaret Witt, who was discharged after authorities discovered she had a relationship with a woman, had no grounds to challenge her expulsion in light of congressional findings that gays and lesbians in uniform "create an unacceptable risk" to military morale and "unit cohesion." But the court ordered the government to show why military discipline would be imperiled by the specific presence of Maj. Witt.
President Obama faced an early March deadline to file an appeal to the Supreme Court. Obama aides twice filed requests asking for a one-month extension, which the court granted. The administration let the most recent deadline pass without seeking another extension. A Justice Department spokeswoman said the government would defend the law at the trial over Maj. Witt's dismissal. The decision not to appeal to the Supreme Court "is a procedural decision made because the case is still working its way through the regular judicial process," she said. White House spokesman Ben LaBolt said the president remains committed to repealing the law "in a sensible way that strengthens our armed forces and our national security" but added: "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."
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Maj. Witt joined the Air Force in 1987 and received multiple commendations and decorations for her service. She "was made an Air Force 'poster child' in 1993," the opinion from the Ninth U.S. Circuit Court of Appeals said, and the service used her photo in recruitment materials for more than a decade. Maj. Witt also had a relationship with another woman from July 1997 through August 2003, the opinion said. The partner was not a military employee and the couple's home was in Spokane, Wash., 250 miles from the base where she was stationed. According to the lawsuit, Maj. Witt did not tell anyone in the military that she was homosexual. In July 2004, however, the Air Force began investigating her for homosexuality and five months later began proceedings to discharge her. The action left her less than a year short of the 20-year service requirement to obtain a full Air Force pension.
The Ninth U.S. Circuit Court of Appeals had rejected similar suits in the 1990s. In its May 2008 ruling, the appeals court said the Supreme Court changed the legal landscape in 2003, when, in striking down a Texas sodomy law, it found that homosexuals had a constitutional right "to engage in their conduct without the intervention of the government." Citing that case, the Ninth Circuit held that the government would have to do more than show that the "don't ask, don't tell" law furthered an important interest. Rather, at trial it must show how expelling Maj. Witt "significantly furthers the governments' interest and whether less intrusive means would" have worked just as well. "Only then can DADT be measured against the appropriate constitutional standard," Judge Ronald Gould wrote for the court. The ruling suggested the judges were skeptical that Maj. Witt, a nurse, posed a threat to military discipline.
http://online.wsj.com/article/SB124268952606832391.html (subscription)
Printed in The Wall Street Journal, page A3
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