A Victory for Servicemembers
The National Lesbian and Gay Law Association (NLGLA) applauds the U.S. 9th Circuit Court of Appeals panel's decision to send a lawsuit brought against the Department of the Air Force back to District Court for further review.
The suit was filed by Major Margaret Witt, a decorated and highly commended flight nurse; Major Witt was a "poster child" for the Air Force and had appeared in recruitment materials.
The Court of Appeals reinstated the lawsuit, holding that substantive due process demanded a heightened level of scrutiny. While the decision leaves in place the “Don’t Ask, Don’t Tell’s” ban, the court found that, before separating a servicemember from his or her post, the military must prove that the individual’s conduct actually hurt morale or jeopardized another government interest:
"We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest. "
Senior Circuit Judge William C. Canby, in his partial dissent, disagreed with his colleagues as to whether this case should not merely require heightened scrutiny but strict scrutiny instead. Citing Lawrence v. Texas, Judge Canby wrote "I have no difficulty concluding that the right to engage in homosexual relationships...is a personal right of a high constitutional order, and that the 'Don't Ask Don't Tell' statute so penalizes that relationship...that it must be subjected to strict scrutiny."
The NLGLA congratulates Major Witt and the ACLU of Washington for their victory on behalf of all our men and women serving in the armed forces.
We will be hosting a nationwide conference call to discuss the ruling. The call will take place on Thursday, May 29, 2008 at 6:00pm EDT / 3:00pm PDT and will be led by James Lobsenz, the lead litigator for the case, and the Servicemembers Legal Defense Network's Kathi Westcott. To sign up for the conference call, click HERE.
Witt v. Department of the Air Force Conference Call
Thursday, May 29, 2008
6:00pm EDT / 3:00pm PDT
Click HERE to register
To get more information about the case or to learn how you can get involved in the struggle for equality, please visit the following:
American Civil Liberties Union of Washington
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