to Do with Witt?
The Status of the Major Margaret Witt
DADT Discharge Case
Tom Carpenter, Esq.
challenges to the law, commonly known as “Don’t
Ask, Don’t Tell” (“DADT”), began almost
immediately after it was passed by Congress and signed
by President Clinton in 1993. For many years,
numerous cases brought on behalf of service members
impacted by the law, made their way through the
lengthy litigation process of the Federal Courts.
The thrust of these cases was that DADT was
unconstitutional based upon the right of free speech,
equal protection under the law, substantive due
process and other legal theories. Unfortunately,
in almost every case, the court disagreed with the
service members and found DADT constitutional. Federal
judges had little difficulty disposing of arguments
based upon free speech and equal protection but
struggled with claims based upon the right to
substantive due process.
Two major legal concepts posed difficult burdens for
the service members to overcome. The first was
commonly known as “deference.” Simply put, Courts
were reluctant to second-guess decisions made by other
branches of the government when it came to military
matters, particularly those dealing with personnel. To
many judges, the debate in Congress, leading to what
was viewed as a compromise between the desire of the
President for open service and opposition from the
military leadership and many members of Congress, made
the deference doctrine even more compelling in DADT
The second obstacle was the law established in the U.S
Supreme Court (“USSC”) 1986 case of Bowers v.
Hardwick. This case stood for the proposition that
judicial review in cases involving “homosexual
conduct”, in which the appellant claimed a violation
of substantive due process, was the lowest standard,
“rational basis.” The burden on the government
under this test is slight. It need only demonstrate
that the law be “rationally related” to a
“legitimate government interest.”
By the early 2000’s all Federal Courts were in
agreement that DADT was constitutional. The path
to challenging the law in the courts seemed to have
reached an end.
In 2003, a narrowly divided USSC decided Lawrence v.
Texas in which it over ruled Bowers and for the first
time found constitutional protection for “homosexual
conduct.” Unfortunately, the majority decision
written by Justice Kennedy, did not specifically
address what standard should be applied when
conducting a judicial review of whether a particular
law violated the substantive due process rights found
in the Constitution. Courts were left to struggle with
whether the test was “rational basis” or some
higher standard. With the decision in this case,
the legal path to challenge DADT seemed to reopen.
Major Margaret Witt, a nurse, was literally a poster
girl for the Air Force. Her case began when an
anonymous source informed her command she was in a
long time relationship with a civilian woman. Major
Witt lived with this woman over 250 miles from the
military hospital where she drilled as a Reservist.
When her peers heard the accusations against her, they
closed ranks and supported her retention. Not
withstanding this solidarity, the Air Force decided to
discharge her in order to uphold “good order and
Witt filed suit in Federal Court in Washington State,
challenging the constitutionality of DADT. The
District Court dismissed the cased based upon the
pre-Lawrence precedents from the United States
Appellate Court for the 9th Circuit (“9th
Circuit”). The 9th Circuit is the appellate court
for the Federal District Courts in the western states
of Alaska, Arizona, California, Idaho, Hawaii,
Montana, Nevada, and Oregon, Washington. Witt appealed
the dismissal to the 9th Circuit.
In May 21, 2008, a three-judge panel of the 9th
Circuit held that earlier decisions in the 9th Circuit
based upon Bowers, in light of Lawrence, were no
longer valid. This decision did not find DADT
unconstitutional on its face. The Court did, however,
find that review of the law was entitled to heightened
scrutiny beyond the “rational basis” test.
This would shift the burden from the service member to
the government to show that the discharge of a
particular service member would preserve “good order
and morale” of a military unit. The case was
remanded by the 9th Circuit to the District Court for
In response to this ruling, the government requested
the entire 28 judges 9th Circuit (en banc) hear the
case. On December 4, 2008, with only six Republican
appointed judges dissenting, the Court rejected the
Between the Witt ruling in May and the denial of the
motion for an en banc hearing in December, the 1st
Circuit Court of Appeals in Boston, ruled in Gates v.
Cook, another DADT case, that even though Lawrence did
mandate higher scrutiny, based upon “deference”,
it upheld the District Court dismissal of the case.
The rulings in Witt and Cook are in conflict. This
split in the Circuit Courts on a question of national
importance would likely lead to the USSC granting
review if either or both cases were appealed.
In Witt, the government has 90 days to appeal the 9th
Circuit decision to the USSC. If it does not file an
appeal, the case will proceed to trial. It is unlikely
the Bush Justice Department would appeal the case so
late in the administration. It will probably ask the
Court for more time to file the appeal and pass the
decision on to the new administration.
The new Justice Department would have three options.
The first would be to settle with Major Witt on terms
favorable to her.
The second option would be to do nothing and allow the
matter to go to trial. Discovery would commence in the
District Court with a trial date in late 2009 or 2010.
Depositions of key Pentagon officials and senior
military officers would permit Witt’s attorneys to
examine the history of DADT, challenge the rationale
for the law as well as its well established uneven
application and question the high cost to the country
in this time of two wars. This examination is probably
something the Department of Defense would probably
wish to avoid.
The final option would be to appeal to the USSC. With
the present makeup of the Supreme Court, it is
probable the outcome would not be favorable to service
members. Such an adverse decision would close the door
on any future attempt to find relief for service
members through the judicial system.
What the Obama Justice Department does in this case
may signal whether the new President’s
administration and the Democratic Party
will fulfill its campaign promise to end DADT. Time
Marine Captain Tom Carpenter is a member of the state
of California and Colorado and practices in the
federal court system
2008-2009 Gay Military Signal