Friday, June 13, 2008

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 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.


Anonymous said...

Sometimes, it's depressing for me to realize how little Americans actually learn from their history. This whole "gay marriage" push is really putting the cart before the horse. This case, for me, is a step towards righting the ship. Would you like to see if I could throw another couple dozen cliches in this comment?

Basically, DADT is so much crap. Doing away with it will be a great start towards achieving true equality for all of us. Look at what desegregating the Army did for the Civil Rights movement. It is worth noting, however, that the miscegenation laws weren't overturned until Loving v. Virginia in 1967 (GREAT year, by the way).

We should talk about this sometime.

Thalassa said...

You're right, DADT is so much crap. I also agree that the desegregation of the military went a long way toward furthering the Civil Rights movement.

However, Loving v. Virginia wasn't the FIRST challenge to anti-miscegenation laws. It was the FIRST SUCCESSFUL NATIONAL challenge. The national challenges to anti-miscegenation laws started (afaik) with Pace in the 1880's (which failed) and it took until the late 60's for the Supremes to finally step in and force all the states to get with the 14th amendment times. What made Loving possible, however, was that some states (well, DC in this case) did not have anti-miscegenation laws on the books anymore by the 1960's and so the couple were married in DC. When they returned home to Virginia, they found themselves convicted of a crime. The ACLU helped them appeal that conviction, and thus we have the Loving decision.

So, the state-by-state approach to marriage currently underway in the gay rights movement is precisely how the Civil Rights movement tackled marriage. Once a number of states have legalized unions or marriages for same-sex couples, and the people sitting home clutching their walkers with white knuckles realize that they're still married and that their social fabric is still intact, we'll have a repeal of the national DOMA. Then, a few years down the line, we'll have a gay version of Loving that will come down from the Supremes and strike down those last red-state hangovers who passed three state DOMAs and a State Constitutional Amendment. (Texas, anyone?)

Anonymous said...

Sorry that it took me a while to get back to this...

You're right that the state-by-state approach is the correct way to get the marriage nonsense overturned; however, the point that I was trying to make was that--the civil rights movement was a process.

The first step in this process is necessarily the right to exist, right? For the former slaves, it took the 14th Amendment to grant them citizenship...for the LGBTs, it took Lawrence v. Texas to make it so that homosexual behavior was no longer criminalized. Winning that battle is huge, but-as we saw with the Civil Rights Movement--such a victory is bound to create a huge backlash. That's what I'm talking about as far as not paying attention to our history.

After the 14th Amendment--and the 15th which gave former slaves the right to vote, there were years and years before they were able to enjoy those rights. And a LOT of stuff had to happen before the Loving ruling to set the groundwork for that ruling to happen. I mentioned the desegregation of the Armed Forces in '48, Brown v. Board of Education in '54, the Civil Rights Act of '64... Only then was the attitude of nation such that Loving v. Virginia could happen. The LGBT movement still has a lot of work to do before a similar result, that's all. Passing ENDA would be good. Overturning DADT would really rock. Equal marriage rights? That's going to be a while. Especially with the makeup of the SCotUS right now. If Obama doesn't win in can kiss it good-bye for at least 30 years.

Queers United said...

its crystal clear she was kicked out for being a lesbian. even though she didnt speak up about it. the policy not just don't ask don't tell its lets find gays and kick em out. we need to repeal this asap.

Thalassa said...

Ok, I'm the slacker this time. I took forever getting back to this. I see what you're saying about not learning from history, but I don't agree. I think that the organizations and individuals who worked to make the existing situation happen were and are prepared for the backlash that they're seeing. (Possible exception: Lawrence & Garner themselves. I don't think they really expected to be activists or poster children, they just didn't want to go to jail for having sex.) The rest are working to fight the backlash while still advancing the causes to which they're committed. If you don't believe me, you should dig up some of the incredibly targeted fund raising going on in Cali right now to fight the proposed state constitutional amendment that would ban gay marriage.

I also don't think that working for marriage equality in places like California (where it stands a fairly good chance of taking hold) is incompatible with working on ENDA or DADT. This isn't a single-front process, any more than Civil Rights ever was. ENDA can only be lobbied during the window of legislative opportunity. DADT can only be argued when court cases involving it come to the fore. The state-by-state thing only has limited windows in each state depending on its governmental schedule, but with 50 windows that provides the opportunity for fairly steady campaigning. And the activist organizations aren't ignoring state and local equal rights laws, they're working on multiple issues simultaneously.

The desegregation of the military went a really long way in the Civil Rights movement, I understand your point. However, I don't think abolishing DADT is the same keystone issue in Gay Rights. First, gay members of the military really CAN cause morale issues. If you've ever been in an office where two of your co-workers had a nasty breakup, you know what I mean. The fact that we still don't allow women on the front lines is part of the same general principle in operation there: people who are romantically involved will do boneheaded things in order to protect each other at the expense of every other member of their unit and at the cost of their jobs, their lives, and their honor. Our military has rules in place about how married couples can't be in the same unit or chain of command together and how people can't "fraternize" with others whose rank or position is incompatible with them being married. That doesn't stop it happening sometimes, but because of the combat role segregation, it almost never involves danger to other lives. Those rules, if extended to cover homosexual relationships, would probably work as well as they do currently for heterosexual folk outside of combat situations. I don't know enough about the demographics to guess at the potential harm in combat deployments, but that's my reservation about ending DADT. It was a compromise measure, a baby step, and I look forward to the day we can move past it. I think that has to be done carefully, and with appropriate modifications to the regulations in place, but I look forward to it happening.

Anonymous said...

You're forgiven for your slacker-tude. I just made that word up...I think I like it.

ENDA and the repeal of DADT are not necessarily incompatible with the Gay Marriage work; HOWEVER, they bring different visceral reactions from the "good and decent, God-fearing Christian folk." As we all know (please realize that my tongue is firmly implanted in my cheek when I say this), Gay Marriage is an abomination that will ruin the very fiber of our civilization. However, ENDA is just keeping the gays employed and housed so they don't become a drain on society and DADT...well, we can't afford, during this time of war, to be tossing any able-bodied person out of the armed services.

I'm just saying that the knee-jerk, gut reaction of "gays must be kept down" to the subject of marriage seems to be bleeding into the other areas and making those measures more volatile and harder to be passed. And if we can get those passed, they set up nice precedents for a case for allowing equal marriage rights. Marriage is a topic that makes foes of people who might otherwise be allies. That is my concern. Well, that and my complete distaste for the entire institution.

As for your concerns regarding the repeal of DADT: I'd say if LGBT folk are allowed to serve openly, then instances of serving in the same unit as your S.O. could then be more easily resolved by the parties involved. I mean, I'm sure that there are instances of that happening in the military now, but neither of them could go and ask for a transfer because they're sure to be asked why they want out...right? I'm almost certain that I didn't say that clearly... sorry.