A pressing legal reality for the "don't ask, don't tell" standard for gays serving in the military is that the 9th U.S. Circuit Court of Appeals has already struck down the way it's practiced in much of the Western United States.
The 2008 ruling, while largely overlooked, would force the military to apply a much higher threshold in determining whether a service member should be dismissed for being gay.
The government declined to appeal the ruling by the three-judge panel, which leaves it standing as law in the nine states covered by the court. That means gay military members at bases in the West technically have greater protections than their colleagues across the world.
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."
Defense Secretary Robert Gates acknowledged in congressional testimony recently that the Pentagon must devise "new rules and procedures" in response to the San Francisco-based 9th Circuit's decision.
At issue is a ruling in the case of an Air Force major from Washington state who was dismissed from the military after she was found to have been in a lesbian relationship.
The court ruled that for a gay service member's discharge to be constitutional, the military must demonstrate that the firing promotes cohesion or discipline in the unit.
That is a much higher standard than what has been practiced since the "don't ask, don't tell" policy took effect in 1993: The military simply has to show that the person has engaged in homosexual activity, made statements about being gay, or tried to marry someone of the same sex.
The two standards represent a thorny issue for the Armed Forces, and military brass are keenly aware of the dilemma.
The military branches say they haven't changed how they go about issuing "don't ask" dismissals in the states covered by the 9th Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
But if the military is found to have been discharging people within the 9th Circuit without applying the higher standard, it could be forced to pay punitive damages in federal court, some lawyers say.
Furthermore, if the military cannot demonstrate a gay member's discharge would hurt the unit, that person might end up serving openly — even as others around the globe continue to be discharged.
The military is currently in the midst of a 45-day effort to analyze how to apply "don't ask, don't tell" more humanely through administrative changes to the policy, and the standard is one thing being looked at.
Rep. Snyder suggested that the Defense Department cure the problem by making the venue for all "don't ask" dismissals fall within the 9th Circuit, so that all service members would have the same rights.
The issue is typically referred to as the "Witt standard," named after Air Force Maj. Margaret Witt. She was a decorated flight nurse at McChord Air Force Base in Washington who shared a house in Spokane with her longtime partner and was honorably discharged two years short of full retirement. She then sued.
A three-judge panel in the 9th Circuit upheld "don't ask, don't tell," but granted constitutional protections to gay service members targeted for discharge, saying the military had to show that their firing furthered the goals of the policy, such as military readiness or unit cohesion.
The decision became law as soon as it was issued, but it wasn't until last June that Obama announced that the government would not appeal.
The ruling also reinstated Witt's lawsuit against the Air Force, which is headed for trial in federal court in Tacoma.
Witt argues that her dismissal actually hurt troop readiness and morale. There was a shortage of flight nurses at the time, she says, and one of her colleagues, a sergeant, resigned in protest of her dismissal.
"Don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity, even in the privacy of their own homes off-base.
More than 13,500 service members have been fired under the law since 1994, according to the Servicemembers Legal Defense Network, which is lobbying for the law's repeal.
Defense Department figures show 1,047 people were discharged in 2008 and 2009. It's not clear how many of those were in the 9th Circuit or how many occurred after the Witt ruling came down. Spokeswoman Cynthia O. Smith said the department does not have a breakdown of dismissals by military base.
"Given the complexity of the legal issues involved and the ongoing litigation in the Witt case, DoD is working closely with the Justice Department to ensure that we are complying with our legal obligations in the 9th Circuit and elsewhere," she said.
Lt. Col. Victor Fehrenbach, an F-15 fighter pilot from Idaho, said the Air Force refused to apply the higher standard during his discharge proceedings last year.
"If the burden of proof was on the Air Force to prove that my presence was detrimental to good order, discipline, morale and unit cohesion, there would have been a different outcome," he said. "If the Witt standard had been followed, I would be continuing to serve with no problems whatsoever."
When gay service members sued over their dismissals in the first decade of the policy, courts historically accepted the military's argument that having gays in the service is generally bad for morale and can lead to sexual tension.
But the judges in the Witt case said the legal landscape changed when the U.S. Supreme Court in 2003 struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy. The 9th Circuit said that the landmark decision opened the door for the courts to take a fresh look at the constitutional rights of gay Americans.
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