Skip to comments.Ninth Circuit Rules Against Military's 'Don't Ask, Don't Tell'
Posted on 05/21/2008 4:37:24 PM PDT by Sub-Driver
Ninth Circuit Rules Against Military's 'Don't Ask, Don't Tell' By Pete Winn CNSNews.com Senior Staff Writer May 21, 2008
(CNSNews.com) - The future of the military's "Don't Ask, Don't Tell" policy was cast into doubt on Wednesday.
The Ninth Circuit Court of Appeals in San Francisco, Calif., ruled that it is no longer enough for the military to state the policy -- which says that "homosexuality is incompatible with military service" -- when it discharges members of the armed services it discovers to be homosexuals.
In a split decision, a three-judge panel ruled that the U.S. Air Force will have to prove why it discharged Margaret Witt, an 18-year Air Force nurse, under "Don't Ask, Don't Tell."
Witt, a major in the Air Force Reserve, was discharged in 2004 when it came to light that she had had a lesbian relationship from 1997 to 2003 with a civilian woman. She filed suit in 2006 challenging her ouster from the Air Force.
The federal district court in Tacoma, Wash., held that "Don't Ask, Don't Tell" policy was not subject to judicial review, and the Air Force didn't have to prove anything other than that she was a homosexual.
But the Ninth Circuit, citing the Supreme Court's 2003 Lawrence v. Texas decision, which struck down state sodomy laws, sent the case back to the lower court, ordering it to reconsider the constitutionality of "Don't Ask, Don't Tell."
(Excerpt) Read more at cnsnews.com ...
Hey, why not. Gays can now marry in California. Just open the floodgates.
Separation of powers? What’s that?
One would assume that this can be appealed to the USSC, where at the moment they usually understand what the Constitution is.
Nothing the 9th Circus Court does is a surprise...anything immoral goes with this lot.
Why do these guys still have jobs? Just about every. single. ruling. this court has made has been overturned by the USSC...
Is there no affair of man or beast that the Ninth Circus doesn't consider within its purview?
Riddle of the day:
What is the difference between a dictator and a leftist court?
The dictator only has one head.
To think of how Scalia and Santorum were scorned and ridiculed when they warned where Lawrence v. Texas would lead.
The 9th circus will be overruled as usual!
If the nation were best defended by an army made exclusively of 3-legged dwarfs, that’s the one I’d want. If we lose a war, it’s no consolation that we, at least, were non-discriminatory in our recruiting practices.
Looks like another slapdown is coming for the 9th Circus.
celtic gal: “Nothing the 9th Circus Court does is a surprise...anything immoral goes with this lot.”
Perhaps you don’t realize they think you’re immoral for opposing them. In their eyes, they are only trying to correct past wrongs, and you’re the judgmental, evil one if you speak against them. Unfortunately, even some FReepers support the rights of homosexuals to marry. They say it’s a matter of civil rights and individual liberty. It is sad. We have reached the point where perversion is called good and good is called evil. God save us!
Stuff like this makes holding the nose and voting McCain a bit easier.
Can you imagine if Hussein got to appoint 3 new Supreme Court Judges and they started upholding the 9th circus decisions?
To think of how Scalia and Santorum were scorned and ridiculed when they warned where Lawrence v. Texas would lead.
I bet the Ninth Circuit can't wait for a gay marriage case and use Lawrence vs. Texas. We might have one coming up to bat. The referendum to the CA state constitution banning gay marriage passes but the next day someone sues in federal court citing Lawrence vs. Texas.
The US Supreme Court opened the floodgates with Lawrence V. Texas. This is just an inevitable response to it.
But who cares? Let the liberal judges make all the rulings they want. I don’t however buy the idea that the military is subject to judicial review or should be bound by it.
Would it be improper for the Air Force to discharge someone after 18 years of service, if they knew for years that person was a lesbian, for the purpose of denying that person their military retirement benefits?
Wikipedia and all other commentators are going to have to hurry to revise statements that it is “highly unlikely” that courts will try to apply Lawrence to service in the military:
“Even though not decided upon equal protection grounds, sexual liberty supporters still hope that the majority decision will call into question other legal limitations on same-sex sexuality, including the right to state recognition of same-sex marriages, and the right to serve in the military. The latter appears highly unlikely in light of the Supreme Court’s recognition that “the military is, by necessity, a specialized society separate from civilian society.” The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has upheld that Lawrence applies to Article 125 of the UCMJ, the article banning Sodomy. However, the court has twice upheld prosecutions under Article 125 (the article prohibiting sodomy), in United States v. Marcum and United States v. Stirewalt, finding that the article was “constitutional as applied to Appellant” and when applied as necessary to preserve good order and discipline in the armed forces. Although no court has interpreted the U.S. Constitution to require states to allow same-sex marriage, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health that the constitution of the Commonwealth of Massachusetts required that same-sex couples be given full marriage rights. The decision did cite Lawrence, which was decided some four and a half months earlier, but did not draw on its direct precedential authority, as Goodridge was decided on exclusively state constitutional grounds. On the other hand, several federal district and circuit courts that have considered the extent of Lawrence have held that it is an extremely narrow holding under rational basis review. These courts have ruled that Lawrence does not call into question laws regulating marriage, nor does Lawrence strike down other regulations related to homosexuality. (See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Lofton v. Sec. of Dept of Children & Family Services, 358 F.3d 804 (11th. Cir. 2004); Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004).) The Supreme Court has not yet accepted any cases that present an opportunity to further define the implications of Lawrence....”
Or started incorporating sharia law into decisions?!
You do know the U.S. Constitution is a living, breathing document, don't you?/sarc
Fine, the USAF should set aside her discharge then courts martial her for misconduct and send her sorry ass to prison for ten years.
What is a civilian court doing meddling in military matters? Since they are lawyers and leftists with disordered minds it is no surprise. But where is the "adult leadership" in this country? That court needs a slapdown for sure!
The sodomy decision from the US Supreme Court is coming back to haunt the whole American judiciary, exactly as Justice Scalia then predicted in his sharp dissent.
For all who are intending to sit out this election, take a good look at Osama’s potential SC justices IF he wins the WH...THAT SHOULD SCARY THE CRAP OUTTA U! And we are taking for LIFE! God help us! Please!
Why do you ask?
Oops...taking should read talking...:)
Barack, as a potential commander-in-chief, just let out a sigh of relief. “Na dey won’t ax me, thank Allah” he was heard to mutter.
How many divisions has the Ninth Circuit?
I think the real story here isn’t the Major’s sexuality, but the how her command came to decision to file discharge paperwork, especially with about two years to go for retirement.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
It does sound like this woman kept her affairs to herself and strictly honored the "don't tell" part of the policy. All the Court has decided is that the discharge is not automatic, that judicial review of the Air Force's application of the policy in this case is appropriate (that is what Due Process means), and that it actually has to hear and decide the case based on law. That is not so bad, actually.
I cannot see McCain being able to get any decent justice nominee through. The Senate will reject anyone he nominates, except, maybe Hillary Clinton.
I am especially curious how this issue came to the attention of the Air Force since it sounds as though she kept her affairs at home and didn't "tell."
So not only did she not violate the don't tell part of the policy, the Air Force itself violated the "don't ask" part.
It’s amazing, isn’t it? You can serve your country without any problems for 18-years and then have the floor ripped out from under you because you’re gay. And two years before retirement benefits kick in!
So you don’t believe that all men are created equal?
Seems kinda crooked- And I’m as right wing gun nut as
anyone. Many base there ideas on homosexuality
on the Bible which is the authority I think....
But there the writer used the definate article in
reference to men.... not the ladies.....Ed
All men are created equal. True. But that doesn’t allow you to do whatever you want, nor does it require society to validate deviancy. Homosexuality is not only a spiritual abomination, it’s disfunctional behavior, a social ill. Homosexuals should have the right to live their lives as they see fit, but they shouldn’t be entitled to special treatment. Sexual orientation is NOT a protected class under the US Constitution, nor should it be.
I understand many libertarians oppose any laws that legislate morality, but that’s an extremely naive position. “All men are created equal” itself involves a moral judgment. Traditional morality, including monogamous, heterosexual marriage, builds society up. Immorality tears it down.
Of course, some of you don’t care. You’d toss out any law that restrains your ability to do pretty much whatever you please, even though you will ultimately tear this society apart. Individual liberty and a free society only works when people govern themselves. What many really want is anarchy, and they are willing to do whatever necessary to have it.
The timing on the Calf. ruling was no coincidence to this at all.
Whatever problems we have against John McCain, he would never knowingly appoint judges of the like who are responsible for this ruling. No one can say the same about Obama or Hillary.
Gays simply don’t belong in the military or anywhere else people are in close contact with one another. I find it all I can do to restrain myself from committing assault at the gym when some guy is staring at me in the shower. Gays should stick to sodomizing each other and stay away from the rest of us.
Maybe the USSC will use this case to reverse Lawrence v. Texas.
The 9th Circuit court is the most overruled by the SCOTUS.
Time to start building an ark and let God wipe these evil bastards off the face of the earth.
There are some pretty good reasons not to allow homosexuals to serve -- like the sexual privacy of the heterosexual military personnel. I'm sure quite a few don't want to have room, shower, undress in front of or share a foxhole with someone that might have sexual attract to them.
A conservative President might consider letting the Democrats keep rejecting nominees and let the vacancies linger if the justices that retire are liberal ones. Unfortunately, McCain isn't a conservative.
wow. just wow. There is nothing I can type to rebut your arguments more than saying that and noting that it’s not a compliment in any way.
Only until "president" Barack Hussein Muhammad Obama (PBUH) gets a chance to nominate three or four justices, after which the 9th Circuit will look conservative in comparison.
Certain rights and privileges in the military have always been curtailed.
It thus seems to me that an argument can be made that the courts do not have jurisdiction over rules regarding homosexuality.