Could DADT Discharges Be Halted by the “Witt Standard”?

Well this is interesting. It would be a short-term and potentially costly solution, but Air Force Maj. Margaret Witt‘s successful challenge of Don’t Ask Don’t Tell standards might just be enough to slow DADT discharges to a crawl, or even stop them entirely.

From the Associated Press:

A pressing legal reality for the “don’t ask, don’t tell” standard for gays serving in the military is that the 9th U.S. Circuit Court of Appeals has already struck down the way it’s practiced in much of the Western United States.

The 2008 ruling, while largely overlooked, would force the military to apply a much higher threshold in determining whether a service member should be dismissed for being gay.

The military branches say they haven’t changed how they go about issuing “don’t ask” dismissals in the states covered by the 9th Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

But if the military is found to have been discharging people within the 9th Circuit without applying the higher standard, it could be forced to pay punitive damages in federal court, some lawyers say. Furthermore, if the military cannot demonstrate a gay member’s discharge would hurt the unit, that person might end up serving openly — even as others around the globe continue to be discharged.

[Rep. Vic Snyder (D-AR)] suggested that the Defense Department cure the problem by making the venue for all “don’t ask” dismissals fall within the 9th Circuit, so that all service members would have the same rights.

The issue is typically referred to as the “Witt standard,” named after Air Force Maj. Margaret Witt. She was a decorated flight nurse at McChord Air Force Base in Washington who shared a house in Spokane with her longtime partner and was honorably discharged two years short of full retirement. She then sued.

A three-judge panel in the 9th Circuit upheld “don’t ask, don’t tell,” but granted constitutional protections to gay service members targeted for discharge, saying the military had to show that their firing furthered the goals of the policy, such as military readiness or unit cohesion. The decision became law as soon as it was issued, but it wasn’t until last June that Obama announced that the government would not appeal.

In other words, instead of the defendant proving that she/he is an exception to the broad “gays are grody” premise of DADT, the plaintiff must now prove the broad rule as it pertains to the individual servicemember.

This is, I think, a game changer.

If Rep. Snyder’s proposal is approved, the Witt Standard would be used in every DADT prosecution throughout the military. And even if it isn’t approved, the Witt Standard already applies to military posts within the wide jurisdiction of the 9th Circuit Court of Appeals. That’s notable because it would include high-profile defendant Lt. Col. Victor Fehrenbach.

Maj. Witt and Lt. Col. Fehrenbach
Maj. Witt and Lt. Col. Fehrenbach

The ruling also reinstated Witt’s lawsuit against the Air Force, which is headed for trial in federal court in Tacoma. Witt argues that her dismissal actually hurt troop readiness and morale. There was a shortage of flight nurses at the time, she says, and one of her colleagues, a sergeant, resigned in protest of her dismissal.

Lt. Col. Victor Fehrenbach, an F-15 fighter pilot from Idaho, said the Air Force refused to apply the higher standard during his discharge proceedings last year.

“If the burden of proof was on the Air Force to prove that my presence was detrimental to good order, discipline, morale and unit cohesion, there would have been a different outcome,” he said. “If the Witt standard had been followed, I would be continuing to serve with no problems whatsoever.”

When gay service members sued over their dismissals in the first decade of the policy, courts historically accepted the military’s argument that having gays in the service is generally bad for morale and can lead to sexual tension.

But the judges in the Witt case said the legal landscape changed when the U.S. Supreme Court in 2003 struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy. The 9th Circuit said that the landmark decision opened the door for the courts to take a fresh look at the constitutional rights of gay Americans.

We now have a DADT repeal bill in both the House and the Senate. President Obama is (theoretically) on board. Top US military leaders say not only that it isn’t necessary, but that it’s actually harmful. The vast majority of Americans, in study after study, say the law should be pitched.

Use of the Witt Standard is not a replacement for repeal. It does not put an end to this discriminatory and thoroughly un-American law. It is not the goal that we seek.

But if it’s applied as required by federal law in the 9th Circuit, it could stop the bleeding while we wait for Representatives and Senators to do their jobs.