This is big. Big big.
District Judge Ronald Leighton of the 9th Circuit ordered late Friday afternoon that the US Air Force must reinstate DADT victim Maj. Margaret Witt because, in the Court’s words, her discharge was unconstitutional. This is the second time in as many weeks that a federal court has used that word to describe Don’t Ask Don’t Tell.
(Lots of links up there. If you’re just learning about Witt, Fehrenbach, Dan Choi, and the ultimate defeat of DADT, you need to follow all of them.)
In support of the Congressional findings underpinning DADT, the government can point to polls and petitions which reflect Congressâ€™ fear that openly serving gays and lesbians will negatively impact military readiness by eroding unit morale and cohesion across the services without regard to any one individualâ€™s billet or job description. Again, these polls are some evidence that some folks would prefer to not serve with admitted homosexuals. That such views may lead to a drop in recruitment or retention is a possibility, just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.
The possibility of such push back is off-set by the known negative impact of DADT upon the military: the loss of highly skilled and trained military personnel once they have been outed and the concomitant assault on unit morale and cohesion caused by their extraction from the military.
It’s important to understand what makes Maj. Witt’s case so important. As I posted in March, the Witt Standard essentially turns the DADT burden of proof on its head.
Before, the government accepted as a general rule that lesbians and gay men were a threat to the military. It was up to the accused servicemember to prove that s/he was an exception to that rule, an argument that has never been successfully made even in slam dunk cases like Lt. Dan Choi's, in which the entire process was on autopilot, no one wanted him fired, and even the government’s own witnesses said he was an asset to his unit.
Under the Witt Standard, it is the government’s job to prove that each individual accused servicemember is a specific threat to the military before firing them.
And now, at least in the 9th Circuit, a judge has given that new standard some teeth.
Like I said, big big.