Ninth Circuit allows courts to examine “Don’t Ask, Don’t Tell” discharges from the military more closely

The Associated Press reports:

The military cannot automatically discharge people because they’re gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal.

The three judges from the 9th U.S. Circuit Court of Appeals did not strike down the military’s “dont ask, dont tell” policy. But they reinstated Maj. Margaret Witts’ lawsuit, saying the Air Force must prove that her dismissal furthered the military’s goals of troop readiness and unit cohesion.

The “don’t ask, don’t tell, don’t pursue, dont harass” policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.

Wednesdays ruling led opponents of the policy to declare its days numbered. It is also the first appeals court ruling in the country that evaluated the policy through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.

When gay service members have sued over their dismissals, courts historically have accepted the militarys argument that having gays in the service is generally bad for morale and can lead to sexual tension.

But the Supreme Courts opinion in the Texas case changed the legal landscape, the judges said, and requires more scrutiny over whether “dont ask, dont tell” is constitutional as applied in individual cases.

Under Wednesdays ruling, military officials “need to prove that having this particular gay person in the unit really hurts morale, and the only way to improve morale is to discharge this person,” said Aaron Caplan, a staff attorney with the American Civil Liberties Union of Washington state who worked on the case.

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