Legal Case Looms for
Justice Department

Maj. Margaret Witt took the podium Friday at a rally to repeal "don't ask, don't tell" and, with the Capitol as her backdrop, said, "For 18 years I served in the military, before the Air Force discharged me because they found out I was a lesbian. But I don't want to leave, and I'm challenging the government's attempt to discharge me."

Even as Witt spoke, legal minds at the White House are mulling what to do with her challenge, a court case that will likely force the Obama administration to take its first official action on the military policy prohibiting lesbians, gays, and bisexuals from serving openly. The Department of Justice (DOJ) currently has until April 3 to decide whether they will ask the U.S. Supreme Court to review Witt's case -- a ruling from the ninth circuit court of appeals that some believe will weaken the law because it suggests it must be applied on a case-by-case basis rather than indiscriminately.

"The Bush administration probably would have argued it just because they hate us," says Bridget Wilson, an openly gay attorney in private practice who has worked with LGBT military issues for 35 years. "But it's a new day in Washington. My sense is that they don't want to appeal this because they don't want to get into a battle over 'don't ask, don't tell' right now."

President Obama has flatly endorsed a repeal of the ban. Asked what guidance the White House is providing to the Department of Justice on this issue, a spokesperson for the administration responded, "The President supports changing 'don't ask, don't tell.' As part of a long-standing pledge, he has also begun consulting closely with Secretary Gates and Chairman Mullen so that this change is done in a sensible way that strengthens our armed forces and our national security."

But what the Justice Department will ultimately do is anybody's guess, in part because the ruling on Witt v. United States Department of the Air Force does not necessarily provide a direct challenge to "don't ask, don't tell." If it did, the DOJ would be much more likely to seek a Supreme Court review, because the department would be compelled to defend the law.

Major Witt, a highly decorated nurse, was suspended from service in 2004 -- two years shy of full retirement benefits -- and discharged under the ban in 2007. When her attempt to fight the dismissal was denied a hearing by a federal judge, her lawyers appealed the decision and the ninth circuit ultimately ruled that Witt had a right to her day in court. The decision concluded that, although the government had previously been able to discharge any LGB person under the policy, new protections provided by the 2003 Lawrence v. Texas ruling now required the government to actually prove that an individual's presence was indeed harming unit cohesion. The ruling was also carefully constructed to only apply to Major Witt's case.

"The court did not rule on the constitutionality of 'don't ask, don't tell,' but it said because of a new precedent, 'don't ask, don't tell' has a higher burden to meet in order for an individual to be kicked out," explains C. Dixon Osburn, CEO of Osburn Management Consulting Company and former executive director of Servicemembers Legal Defense Network, a group that advocates for repeal of the policy.

Osburn, a cofounder of SLDN, says the movement has always argued that the government had no evidence demonstrating that letting LGBs serve openly in the military would hurt unit morale or military preparedness.

"We have tried for the last 15 years to get the government to defend themselves and the courts have just looked the other way," he says. "This case is saying, 'No, we won't turn a blind eye to this, you need to give us evidence that the law is sensible on a case-by-case basis.'"

Even though the decision doesn't overturn the policy, "It's a dramatic change of interpretation," says Wilson. "What Witt has really done that is kind of fun is, it has implied that this behavior was too remote to be enforced under this policy -- that it's not reasonable to enforce the policy for something that the Major never brought to anyone's attention and, in fact, was fastidiously closeted." Witt had been in a committed relationship with a civilian woman at the time and lived miles away from the military base.

But Wilson, who considers the ninth circuit's ruling a win, also sees a potential pitfall with the interpretation.

"I don't want to keep 'don't ask, don't tell' and let people stay in if they are fastidiously closeted," she explains. "That's not a victory to me. The victory is that there are some things that are too remote for the government to be regulating -- too private and too personal."

Wilson wagers that the DOJ may let the ruling stand since it merely sends the case back to the lower court to be argued, which has yet to happen.

"If I were them, I would say, 'We're going to let Major Witt go forward with this and we can deal with the result later," says Wilson, adding that part of their equation will surely be a matter of resources. With wars on two fronts, Ponzi schemers to be prosecuted, and drug cartels to battle, Wilson offers, "If I were the attorney general, I might have bigger fish to fry. How much energy does the Department of Justice want to spend on a case that by its very decision is limited to this one individual."

Osburn hopes the DOJ takes a pass on this case, in part, because the Obama administration has already said it favors a review of the policy, which he says, "should happen at the Pentagon." A bill to repeal the ban was introduced by Rep. Ellen Tauscher in the House last week, but Osburn notes that a push from the Pentagon would likely speed the legislative process. A Senate sponsor for the legislation has yet to emerge.

But both Osburn and Wilson doubt congressional action will take place soon enough to render the Witt case moot for the Justice Department. In fact, the government already asked for an extension on March 5, and Osburn said it may ask for yet another once April 3 rolls around. "They're still getting people in place at the department," he says.

Major Witt is in Washington, D.C., this weekend to receive a Courage Award at SLDN's national dinner, but executive director Aubrey Sarvis was not available to comment for this article. Asked if the organization was consulting with the White House on Witt's case and what action they hoped would be taken, a spokesperson said, "SLDN doesn't see the delay as a significant development in the case. We continue to be supportive of Major Witt's fight, which is why we're honoring her at this weekend's gala."