If you are a gay soldier in the U.S. armed forces serving in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, or Washington, congratulations, you have more protections from being kicked out under Don’t Ask Don’t Tell than soldiers stationed at Ft. Hood, in Texas, or Baghdad, in Iraq. Not that the Pentagon has really given much thought to extending those protections to you.
Thanks to a “largely overlooked” 9th U.S. Circuit Court of Appeals ruling in 2008, which the Department of Justice opted not to appeal, the states mentioned above (which the 9th Circuit covers) are home to more stringent requirements to oust a soldier under DADT. Which means: “Although it doesn’t appear that the military has ever applied the more stringent standard, the court case presents several problems for the Pentagon now that the Obama administration has embarked on a yearlong review of ‘don’t ask, don’t tell.’ ‘It’s muddled things up for the military,’ said Rep. Vic Snyder, an Arkansas Democrat who serves on the House Armed Services Committee. ‘They really haven’t started grappling with it yet, and I don’t think they know how to respond.'”
So just what did the 9th Circuit’s three-judge panel decide? That in order for a DADT dismissal to be constitutional, the military must prove firing a solider “promotes cohesion or discipline in the unit,” according to the AP, and not just that the soldier outed herself or engaged in The Gay Sex. The ruling stems from a lawsuit brought by Air Force Maj. Margaret Witt (pictured), a lesbian airwoman who lived with her partner in Washington, who was dismissed two years shy of retirement. (The 9th Circuit’s ruling also allowed her lawsuit against the Air Force to move forward; it’s headed to trial in federal court, with Witt arguing her firing hurt unit cohesion and morale.)
What makes this 2008 ruling so interesting — besides the Bush administration’s decision not to appeal it — is that it created two classes of gay soldiers.
Outside the 9th Circuit, the military can dismiss gay soldiers for merely talking about being gay. But if a soldier in Hawaii or Nevada does the same thing, and the military cannot prove the firing would improve unit cohesion or readiness, then that soldier gets to serve openly, with DADT in full effect, while her girlfriend who might be stationed in Afghanistan must remain closeted. Moreover, if the military kicks out a soldier in any of those states without the additional burden of proof, the soldier could theoretically sue for punitive damages in federal court, and even demand reinstatement.
The military has kicked out 1,047 people in 2008 and 2009, though it’s unclear whether any of those dismissals came from the 9th Circuit’s jursidction. But we’d have to assume … some did. (The Pentagon says it doesn’t maintain records on which bases dismissals are tied to, but seriously, a single command line in Excel could generate that information.) Which would mean the Pentagon violated a federal court’s ruling, unless, of course, it can prove the firing helped troop morale.
Which means the Pentagon would have to prove in court that FIRING THE GAY made everyone happy. But surely the Defense Department’s little nine-month review of DADT will clear this all up.