the don't tell show

Did You Know Some Gay Soldiers Can Serve Openly in the Military? Meet the Secret Society

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.

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  • Michael @

    Once again, an Associated Press hack is showing that so-called “news agency’s” gross ignorance about DADT.

    The announcement last May [NOT June] was NOT that the Obama DOJ was going to let the Circuit Court’s decision stand period, but that they were not going to appeal to the Supreme Court to overrule the Circuit Court’s decision to SEND THE CASE BACK to the District level:

    “The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there.” – Wall Street Journal, May 19, 2009.

    AND IN SEPTEMBER 2009, the District judge set a new trial date for September 2010:

    “Department of Justice spokesman Charles Miller said the department will continue to respond to Witt’s lawsuit unless there is a change in law. Asked to comment on the usefulness of pursuing a policy that may soon change, Miller declined to do so. ‘I really can’t speak to that’, Miller said. ‘We take our guidance based on the law’. Though Witt’s trial date has been set, both sides may introduce arguments early next year that could see the case resolved short of trial. Barring an early resolution, a weeklong bench trial is expected.” – Seattle Post Intelligencer, September 2, 2009.

    The BOMBSHELL dropped by Secretary of DEFENSE OF DADT Robert Gates’ in his Feb. 2nd Senate hearing bait and switch testimony was the first indication I’ve seen that they had changed their mind. I have asked courageous Margie Witt for a comment, but she couldn’t out of legal caution.

    There have been questions all along about whether or not the case applies just to her, or, perhaps, those discharged under circumstances like hers which resulted from being outed by a third party.

    Just, of course, as was Victor Fehrenbach who could be one of those affected, as he was stationed in Idaho when he was outed in May of 2008 and in April 2009 when an administrative hearing board finally gave up on waiting for Obama to keep his promise to fight for repeal, and where he remains on active duty while awaiting a decision by the Secretary of the Air Force [who just stated he opposes DADT] to affirm or overrrule it.

    While the TENTATIVE “Witt Standard” was ignored when Fehrenbach was recommended for discharge [and untold numbers of other cases], as his discharge has not been finalized, he could still be saved. Even without it, he could have already been saved given the wide latitude of the Secretary of Defense in the implementing polices of DADT. But remember Gates was claiming 7 months ago that Pentagon General Counsel Jeh Johnson had told him he had no such powers…yet Johnson is allegedly researching the question AGAIN and promises an answer [The same? Totally different? A hybrid?] by March 19th.

    That a 12-yr. old with a dial-up connection to Google could have told Gates differently last summer and that Johnson is one of the cochairs of The Study and that his testimony to the House last week revealed obvious support for NOT repealing DADT should give the most naive pause.

    Some of those might choose to believe that this is a sly way Obama Inc. is helping end DADT: by advancing the obvious logical absurdity of out gays within one Circuit being allowed to serve, but not in all the others, like the inside-out proposition that gays outed by others like Witt and Fehrebach are NOT a threat to unit cohesion but gays like Dan Choi who out themselves ARE.

    But I, alas, attribute it, like Johnson’s ignorant advice to Gates last summer, to a combination of legal and strategic incompetence exacerbated by letting Pentagon homohaters fight for control of the Administration’s agenda.

    In any case, the clock is ticking faster and faster to Nov. 2nd’s midterm elections after which DADT repeal will be doomed indefinitely.

    DAMN The Study! Repeal NOW!!!

  • AlanReeser

    I served in the US Air Force, 1971 – 1991 and I was part of that secret gay society. What a relief to be totally out of the closet now.

  • rainfish2000

    Shouldn’t it be obvious to everone, at this point, that the legislation to repeal DADT (aka Lie and Hide) will not occur (if ever) until after the November election because the DEMS want the GLBT community (which is mostly irrelevant to it in non-election years) to get out in droves and vote for them. It is the old carrot dangled in front of the donkey to get it to move. After the election if DEMS lose – we lose; if DEMS win, we probably lose as well as the reduced numbers in the House and Senate will feel even more like nervous nellies and will not want to “take the risk”. Yep, take the votes, but don’t “take the risk”.

    Face it, both parties use us- the Republicans use hatred against us to drum up votes from the ignorant mob whose interest they do not represent beyond their status as useful fools, and the DEMS use the GLBT community and their fear of the big, bad, boogie man, the GOP, again like useful fools, to achieve the Democratic Party’s ends. Amazing isn’t it, the lynch mob and the lynched are merely the tools of two, corporation appointed, political parties just to get them elected to do the will of their corporate masters.

    At this point, Socialism doesn’t seem so bad to me. Personal profits may be reduced – that will make the Robber Barons on Wall Street sad — but, at least, people come first over profits in that system of government. We already have one Socialist in the US Senate, Bernie Sanders from Vermont, how about at least fifty more? Or, how about a third party that puts ordinary people first, no matter what you call it?

    If only we could stop fighting each other and turn our wrath on the puppet masters who are just using both sides in order to secure their own positions of power. Just remember, they may have the money, but the American people have the votes. During the American and French Revolution (as well as nearly every other revolution) which do you think mattered the most?

    We need a populace movement, no not those other useful fools of the Republican Party, the so-called Tea Party Movement, but a real, all inclusive, American citizens party which demands that the government serves their interest and protects every one’s rights, and not just serve the interest of big business and the Military Industrial-Complex. It is in the best interest of Wall Street that they divide us and keep us at each other’s throats fighting in the streets while they rob us blind behind our backs.

    It’s time to open your eyes and see who the real enemy is. Every time you use a credit card or take out a bank loan at ridiculously high interest rates or allow your fear of becoming ill or disabled coax you into buying exorbitant insurance from a extortionist Health Insurance Company who might just drop you at any time after paying them tens of thousands in premiums over the year – yes, just remember you’re allowing yourself to be nothing but a willing meal for the predators by putting their go-fors and henchmen back into political office.

  • Scott

    It’s the military – all they have to do is transfer them to one of the other locations where this ruling wouldn’t come into play and they can discharge at will then. It’d be much easier for them to get a lawsuit tossed out based on “transferred for the needs of the military” which I’m pretty sure is still in the contract you sign going in

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