Ninth Circuit Rules Against Military's 'Don't Ask, Don't Tell'

CNS News ^

[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."

[Enchante]

"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"

This is what Wikipedia's citizen editors were saying before now about why it was supposed to be "highly unlikely" that Lawrence could be applied to military service issues..... now we will have to see whether the SCOTUS still recognizes the important of the US military as "by necessity, a specialized society separate from civilian society" -- or will they join in the leftist trashing of the military by erasing the basic differences between military and civilian institutions???

[Congressman Billybob]

Normally, we don't need to worry much about a dumb decision by the Ninth Circus Court of Appeals. It is the most reversed Court of Appeals in the known universe. However, in this case, the Ninth is relying on a prior (5-4) decision in the US Supreme Court.

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.

Congressman Billybob

Latest article, "King George Wears a Black Robe"

[RoseofTexas]

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!

[ThePythonicCow]

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?

If that (denial of retirement benefits) could be shown to be the purpose of the discharge, I would think that improper, yes, regardless of the excuse they used to justify the discharge. I don't know what the regulations are, however.

Why do you ask?

[RoseofTexas]

Oops...taking should read talking...:)

[BlueStateBlues]

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.

[Loyalist]

How many divisions has the Ninth Circuit?

[jz638]

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.

[mcshot]

Amen!

[goldstategop]

I agree with the Nine Circus. If its permitted for gays to marry, then there's no reason they have who they are in the U.S military. I've always thought "don't ask, don't tell" is morally offensive. Its the equivalent of a lie and doesn't change the fact that you are who you are but you not allowed to acknowledge it.

"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

[AndyJackson]

I know it seems very easy to slap down the Ninth Circuit, and as retired military I have very grave concerns about the impact of explicit homosexual behavior on troop moral. However, the opinion seems well written and does make some valid points: WITT v. DEPARTMENT OF AIR FORCE

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.

[Jet Jaguar]

I cannot see McCain being able to get any decent justice nominee through. The Senate will reject anyone he nominates, except, maybe Hillary Clinton.

[AndyJackson]

how her command came to decision to file discharge paperwork, especially with about two years to go for retirement.

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."

[AndyJackson]

From the statement of facts in the decision "While serving in the Air Force, Major Witt never told any member of the military that she was homosexual. In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him."

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.

[abercrombie_guy_38]

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!

Disgusting.

[abercrombie_guy_38]

So you don’t believe that all men are created equal?

[hubel458]

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

[CitizenUSA]

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.

[paltz]

The timing on the Calf. ruling was no coincidence to this at all.

[Clintonfatigued]

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.