Strict Scrutiny...

Recently, the 9th US Circuit Court of Appeals heard the case of a Maj. Witt of the US Air Force (USAF). She was a combat nurse, highly decorated, 18 years into her service. She had literally been an Air Force poster child, her image used in recruiting materials over the years. Until, in 2004, someone snitched on her and informed one of her superiors that she had 'the gay' - it's a disease, you see, something like 'the plague' or 'the I'm about to be expensive.' She was investigated and ultimately given an honorable discharge, all just one year before her eligibility for a lifetime pension.

Because I'm a nerd, I read up the review of the case at Law.com and found out some really interesting things which I'm about to share with those of you who are lazy, link-averse readers. For instance, a lot of folks I've heard criticizing those discharged under the Don't Ask, Don't Tell (DADT) policy dismiss the issue with an argument along these lines: "She knew the rules, she broke 'em, she got discharged, and now she's whining about it? Shut up, already."

The thing is, Maj. Witt DID NOT break the rules. She did have a civilian partner, but she didn't talk about it, didn't write about it, didn't protest about it. In fact, her partner lived 250 miles from base, so she didn't flaunt the fact at the occasional grocery-store run-in with fellow servicemembers. She was abiding solidly by the rules laid out in the policy.

Now, what's nerdy and interesting about this decision of the 9th Circuit, and the reason that it made the news at all, is that in light of the decision handed down by the Supreme Court in Lawrence & Garner v. Texas in 2003 the appeals court has required a higher standard of proof from the military that the discharge was justified. That is, there has long been what the legal profession calls the "rational basis" test to determine whether laws like this are reasonable. Basically, the court asks the government why it must discriminate against some of its citizens. The government then says that it had a rational basis for enacting the law or policy in question, and from there the court has simply ruled on whether it was implemented fairly.

Since Lawrence, however, the court is looking more closely at the rational basis itself, not just the application of it. (In Lawrence, the Supreme Court said that the state of Texas had no rational basis for regulating private sexual behavior between consenting adults, even if they have the gay.) The Lawrence decision gets into a legal doctrine called "strict scrutiny" which the 9th Circuit declined to require of the military in this case. Instead, they've required some middle ground between rational basis and strict scrutiny, probably because applying strict scrutiny would effectively destroy DADT outright. The Supreme Court would be very likely to overturn a ruling like that, so the circuit court walked a line here between making an eloquent point and howling at the moon.

So, the rational basis for DADT has always been that keeping servicemembers closeted was necessary to promote unit cohesion, individual morale, good order and discipline, and readiness among the troops. All laudable goals, assuredly, but quite vague. HOW EXACTLY, the 9th Circuit has asked, did Maj. Witt (remember all those medals and commendations?) threaten good order and discipline? If the protests of her co-workers, superiors, subordinates, and patients are any indication, the only thing about her that damaged morale was her ouster. The only possible way she could have been perceived as a threat to readiness is if someone thought they could use her pension dollars for something else and had to get her out of the way to do it.

This will be VERY interesting to watch. Kinda like watching someone work their jaw in futility when you ask them how, exactly, my impending gay wedding threatens or damages their straight marriage in any way.