Sunday, December 07, 2008

Ninth Circuit says that Lawrence v Texas could affect how "don't ask don't tell" is enforced; full court lets ruling stand

The Ninth Circuit Court of Appeals decided in May 2008 that the Lawrence v. Texas case decided in 2003 means that the military must meet a new standard in applying the “don’t ask don’t tell” law in gay discharges. The court had ruled that the service must show that in a specific case a discharge is necessary to promote unit cohesion. That would mean that it is no longer possible to discharge a soldier just on presumption alone. Or, put this way, the “rebuttable presumption” possibility would have to allow serious rebuttal. In many units, obviously, the military would not be able to show that the discharge was necessary, and, particularly, critical personnel like intelligence linguists would not get discharged.

On December 4, 2008, the full court refused to hear the entire order. The Bush administration could appeal to the Supreme Court but the Obama administration could withdraw the appeal.

The case involves a female Air Force officer in Washington State discharged because of a lesbian relationship with a civilian. The court ruling may mean that her suit for reinstatement can be held, or that the Air Force will have to prove she is unsuitable in an administrative procedure under court supervision and held to a higher standard of evidence.

The San Francisco Chronicle article is Bob Egelko, ‘Court's ruling stands on 'don't ask' doubts”, Dec. 5, 2008, link here.

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