Court Reinstates DADT Discharge Appeal

Plainville, Ill., 23 May 2008.
A US court’s decision states that a service member discharged under Don’t Ask Don’t Tell has the right to sue for reinstatement because, under Lawrence vs. Texas, the government would have to prove a compelling reason to deny the right to serve based on status as a homosexual. The military would have to show how a service member’s being gay would adversely affect readiness and ability to perform.

On Wednesday May 21 a three judge panel of the 9th U.S. Circuit Court of Appeals reinstated a lawsuit by Air Force Major Margaret Witt who had been discharged under the Don’t Ask Don’t Tell policy after the Air Force determined that she was gay. Her case had been thrown out by a lower court, the US District Court, which had ruled that she had no right to make a claim; that is that, under the DADT law, her case had no merit. The higher 9th US Circuit Court of Appeals ruled that decision to be in error based upon a broad reading of the Supreme Court’s Lawrence Vs. Texas ruling regarding gay rights. The 9th U.S. Circuit Court of Appeals’ ruling simply sends the case back to the lower court saying that the case does have merit and that the lower court must hear the case and rule on it.

This is not the end of the Don’t Ask Don’t Tell policy set into law by Congress. It is not the beginning of the era when proud American patriotic volunteers will be free to choose to serve openly regardless of sexual orientation. But it is the spark that could be the end of the beginning of the battle against bigotry in our armed forces.

“Each step in our determination to guarantee the freedom to serve openly and honestly in our nation’s military is a giant step for equal rights for all,” said Chief Jim Donovan, president of American Veterans for Equal Rights (AVER). “Major Witt is another brave American service member who is proud of her service to our country and who, like so many others, must fight for the right and recognition all other airmen, soldiers, sailors, marines and coast guardsmen take for granted.”

The complexities of the court system could cause a continued period of extended yo-yo decisions going back and forth, perhaps even eventually climbing to the Supreme Court. Or, as has been the case in some of America’s allied countries, the military could relent and agree that in fact there is no real reason why gay folks should not be able to serve.

“American service members have been serving with openly gay and lesbian members of foreign military for years without any incident,” said Chief Donovan.

While it is tempting to tiredly say, “Don’t hold your breath,” this most recent decision is significant because it is the first positive ruling on gay American military service based on the precedent of the Supreme Court’s Lawrence vs Texas ruling. If the decision prevails, it means that the military would have to show that a person being gay could not perform their duty and that his or her presence in the armed forces would negatively affect readiness. Considering that there is plenty of evidence now that gay people have served honorably and effectively, that their discharges have resulted in critical skill shortages, and that their unit peers really don’t care at all that they are gay, a realistic review would not be able to show that we should not serve.

We live in a democracy where freedom is inevitable; it just takes a while.

AVER Media Contact:
Denny Meyer, AVER Public Affairs
718 849-5665