Yep, there’s another one. Major Margaret Witt, a flight nurse in the Air Force [because medical care is only important, as long as the nurse isn’t a lesbian] was discharged under DADT, and her case is arguing in a whole new direction. From Bill Egnor at FireDogLake:
Maj. Witt filed suit arguing that her Equal Protection rights under the 14th Amendment had been violated and under Fifth Amendment Due Process rights. The district court dismissed this case, as it had many others. However Maj. Witt was arguing a new line. Namely that the Lawrence v. Texas case set a new standard; in Lawrence v. Texas the Supreme Court found that statutes which ban homosexual sodomy were unconstitutional. This cuts the legs out of from under the administrative hearings finding of homosexual acts which Maj. Witt’s discharge under DADT was based.
Major Witt has testified that she has never engaged in homosexual sex with any member of the armed services nor any one who works for the military in a contractor capacity. She also contends that her sexuality if it had been known would not have harmed the unit cohesion (the argument that the DOJ will almost certainly make, and which was stuck down in the recent case brought by the Log Cabin Republicans). She argues that the investigation and discharge of a popular officer was actually more harmful than open knowledge of her sexuality ever could be.
The 9th Circuit Appeals Court found this argument persuasive enough to over turn the dismissal of the case and has ordered that there be a full trial with attention given to the Lawrence decision and its affects on due process in regards to DADT. Given the recent finding of fact in the both the Log Cabin Republican and Prop 8 cases it there is a good chance that the district court will also find that the premise of DADT, namely that gay service members are so destructive they are unfit to serve, is based on rank bigotry. There never has been any evidence that homosexuals are unfit to serve. The experience of the dozen or so other militaries in the world who allow their gay citizens to serve openly and proudly should be proof enough that this meme is so much hogwash.
What’s happening here is that the veil is finally being lifted on the fact that anti-gay laws don’t pass constitutional muster in any number of areas. Just as the Prop 8 case was decided based on several different parts of the Constitution, and the current DOMA cases expand the argument even further, DADT will likely be found to be unconstitutional on several levels. For a long time, simple animus against gays, as well as an egregious lack of education on the subject, clouded people’s abilities to see what we’ve always understood — that our sexuality is irrelevant to the question of whether or not we should enjoy the same rights as everyone else.
