A federal appeals court has declined to hear an en banc review of a lower-court ruling challenging the anti-gay military policy known as Don't Ask Don't Tell ( DADT ) . The Bush administration may quickly file an appeal with the U.S. Supreme Court, or leave that decision to the incoming Obama administration.
Major Margaret Witt had an exemplary 18-year career as a nurse in the Air Force but was discharged in 2006 after her commander learned that she was a lesbian. She challenged the constitutionality of DADT in federal court in Tacoma, Wash., but lost.
A three-member panel of the U.S. Court of Appeals for the Ninth Circuit overturned that decision in May, saying, for the first time, that the government must provide a more stringent justification for DADT than the "rational basis" required by earlier courts.
The panel based its ruling on the 2003 decision Lawrence v. Texas, in which the U.S. Supreme Court struck down all remaining state sodomy laws. It said the government must not merely have a reason for the policy, it must demonstrate that DADT significantly enhances discipline and unit cohesion, and balance that against how it impinges on the rights of gay Americans serving in the military.
Conservative justices argued that Lawrence was applied too broadly, it is only relevant to criminal statutes, and precedent requires deference to the military on personnel matters.
Lawyers for the Pentagon appealed the decision but the entire Ninth Circuit declined an en banc review of the case. Its decision came down Dec. 4.
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