9th Circuit Revives Suit Over 'Don't Ask Don't Tell'

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The 9th Circuit reinstated part of a former Air Force major's lawsuit challenging the military's "don't ask don't tell" policy after she was honorably discharged for having a lesbian relationship with a civilian woman.

Maj. Margaret Witt lived with another woman for six years in Spokane, Wash. During that time, she was on active duty at the McChord Air Force Base in Tacoma.

She never told any about her sexual relationship, but rumors and allegations led to an investigation that ultimately resulted in her superiors finding out and discharging her after nearly 20 years of service.

She sued the government, claiming the "don't ask don't tell" policy violates her rights to due process and equal protection.

Witt acknowledged that the circuit has previously thrown out similar claims, but argued that she has a case in light of a recent Supreme Court decision striking down a Texas law that banned homosexual sodomy.

The justices' conclusion - that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" - overruled their decision in Bowers v. Hardwick, which upheld a similar Georgia ban on sodomy. But the justices explained that, in deciding Bowers, they had failed to "appreciate the extent of the liberty at stake" and based the opinion on logic that "demeaned the lives of homosexual persons."

Witt successfully argued that the Supreme Court's about-face required the appeals court to dissect the military's policy with heightened scrutiny, as the more recent ruling "recognized a fundamental right to engage in private, consensual, homosexual conduct."

Applying heightened scrutiny, the appellate judges determined that the policy clearly advances the governmental interest of military management, but said they need more evidence to weigh in on Witt's substantive due-process claim.

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