First lgbt litigation decision looms for Obama Justice Department

Just about exactly three months ago, the U. S. Court of Appeals for the Ninth Circuit denied rehearing in Witt v. United States, in which a panel of that court had ruled in May that Major Margaret Witt could not be discharged from the Air Force for having engaged in homosexual conduct unless the Air Force could prove that her conduct in fact hurt morale or jeopardized another government interest. Now the Air Force has two choices.  It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court.

Normally a party has 90 days after a ruling to file a cert petition, which would mean that the government would have to file or forego a cert petition this week. But the government is obtaining an extension of 30 days, so the deadline will come up in the first week in April. This is probably a good thing, since it gives the Solicitor General's office in the Justice Department time to get its act together. Witt will be the first test of whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors.

The political views of the POTUS or of brand new Solicitor General (and former Harvard Law dean) Elena Kagan are not necessarily dispositive. DoJ has an institutional responsibility to defend the validity of federal laws, even federal laws that the current administration does not support. In this case, however, DoJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case.

In order to do that, the Court of Appeals had to find that the government's actions abridged especially important rights.  In the best federal court decision interpreting Lawrence v. Texas since that 2003 ruling, the Ninth Circuit panel stated -

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 than 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.

Everyone knows that the government can't meet this burden in Major Witt's case and probably can't do so in the great majority of discharges based on homosexual conduct. Discharges of lesbian and gay servicemembers would come to a halt if this standard had to be met in every case.  So the Witt resolution is not viable in the long run. But declining to seek cert and then, probably, settling the case would force Congress, the White House and the Joint Chiefs to deal with this sooner rather than later.

We'll all be watching what happens in Witt.

Comments

[John Bisceglia]

"Don't Ask, Don't Tell" is one of the most unequivocal cases of denial in US Hissstory.

To paraphrase, "We have to pretend you are heterosexual to feel safe, but please for-the-love-of-God don't tell us the truth."

Boys... You can't handle the truth!

DADT is ridiculous; it's as if your government bet billions of your tax dollars on "Ribs" in a game of "Heads or Tails". Seriously.

Just in terms of money and human resources it is reckless at least, if not criminal. I imagine a nice cafe filled with nothing but Gay Americans sipping lattes and speaking Arabic. Gee, if only they had something BETTER to do...

In a moral and just world, it would be CRIMINAL to treat U.S. citizens who volunteer their lives to serve their country as the American Government treats all LGBT military personnel today. To consider these patriots as "immoral", as Mr. Peter Pace had the temerity to do, is a serious affront.

In my lifetime I have met many gay & lesbian veterans. These are decent human beings, America. Seriously. They do not deserve this treatment.

DADT also ruins lives. It is an unnecessary hardship for everyone involved, from the military and our government to every single taxpayer and military personnel. Can't the hetero boys GET OVER IT and "DEAL", because their fear wastes more than America can afford.

Considering how our economy is crap, most states have serious budget deficits, and we are still fighting wars while our infrastructure crumbles beneath our wheels, we may need some ecomonic prudence, hmmm?.

Tax Dollars...anyone?

[James E. Pietrangelo, II]

Actually, the first case to test the Obama Administration's commitment to Gay equality, vis-a-vis DADT, is or will be Pietrangelo v. Gates, US Supreme Court Docket No. 08-824. The Petition in this case was filed on December 23, 2008, and the Solicitor General's response is now due April 6, 2009.