This Washington
The Significance of Major Witt's Victory
The current round of battles challenging laws that deny rights and privileges to gays and lesbians is being fought in trial courts. The latest was decided last Friday in a federal court in Tacoma where Judge Ronald Leighton (a Bush appointee and long-time republican) ruled that the Air Force had violated Major Margaret Witt’s constitutional rights by suspending her for violating the Don’t Ask Don’t Tell (“DADT”) law. The case was decided after a six-day trial where the court considered whether the law in fact actually advanced the claimed government rationale supporting DADT. The court held it did not.
I wrote previously about the California federal court decision holding that proposition 8, the California Constitutional amendment denying marriage rights to gay and lesbian couples, was unconstitutional. That decision was based on a trial that required proof of the claimed governmental interests in denying rights to gay and lesbian couples and their children. Specifically, the trial court found that gay and lesbian partners (and their children) benefited equally from the institution of marriage as heterosexual couples and did no harm to the institution. Earlier this week, the Florida State Court of Appeals ruled that that state’s law barring adoption by gay couples was unconstitutional. That decision was likewise grounded in a trial that demonstrated as a matter of fact that gay and lesbian couples can be as good adoptive parents as heterosexual couples. Indeed, the gay couple who brought the suit had been remarkable parents to two adopted brothers according to the court. In both cases, the evidence demonstrated that gay and lesbians are no different than straight males and females and can equally succeed in marriage and as adoptive parents as their straight counterparts without any demonstrable societal harm.
States and other government institutions routinely justify differential treatment of gays and lesbians on the ground of societal harm. Here in Washington, the State justifies it ban on gay and lesbian marriage because of the perceived harm such marriage would bring to the institution of marriage and because of the alleged societal benefits of encouraging heterosexual couples as parents. The Washington Supreme Court accepted that justification when it upheld the ban on same-sex marriage here.
In Tacoma, an “outstanding,” highly decorated and “well regarded” Air Force major challenged her dismissal from the Air Force for violating the Don’t Ask Don’t Tell statute. Major Witt is a reservist nurse who was suspended from duty because of a sexual relationship with a civilian woman. Major Witt stated she never had sexual relations while on duty or while on the grounds of the air force base. But the husband of a woman who had a relationship with Major Witt complained to the Air Force resulting in her suspension.
Major Witt’s case challenging her expulsion had originally been dismissed by the federal trial court. But on appeal, the Ninth Circuit overturned the federal trial court and held that there had to be a trial on whether the governmental interests claimed by the armed forces—uniform management of the military and the need for unit cohesion—would be significantly furthered by suspending Major Witt and whether less intrusive means could substantially achieve the government’s interests.
So for six days, Major Witt and the Air Force put on witnesses to testify as to Major Witt’s performance on duty and whether the fact that she is a lesbian who exercises her sexual orientation off-duty and off-the air force base undermines the Air Force’s claimed interest in “unit cohesion.” After hearing the evidence, District Court Judge Leighton found that the claimed rationale behind DADT would not be furthered by suspending Major Witt. As Judge Leighton eloquently stated in Court: “I hope you will request reinstatement with the Air Force Reserves and the 446th [her unit]. You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness in this or perhaps any Air Force or military unit.” Assuming Major Witt requests reinstatement, she would be the first openly gay/lesbian armed services member.
As with the proposition 8 and Florida adoption cases, when push comes to shove and evidence is presented to a court, it becomes undisputable that gays and lesbians are no different than heterosexual men and woman and that the claimed rationale for different treatment is not supported by actual evidence of actual experience. To the contrary, the unstated conclusion in all these cases is that laws differentiating between heterosexuals and gays and lesbian are based on biased discriminatory stereotypes.
The history developing here mirrors to some degree the history of how the courts were used as the means to throw out racially discriminatory laws and policies during the civil rights movement. Then, the NAACP lead a systematic series of court cases demonstrating as a matter of fact (not just arguing legal theories) that African-Americans were just as capable (the issue then) as whites in succeeding in graduate schools and colleges so as to deserve admission to public educational institutions reserved for whites. These cases, ultimately led to the landmark decision Brown v. Board of Education where the NAACP demonstrated that separate educational institutions at all levels were inherently unequal and the Supreme Court found racial discrimination in education unconstitutional.
The battle over gay and lesbian rights is being fought and won as a matter of fact in the courts. Sometimes the truth—that gays and lesbians make just as good married couples, adoptive parents, Air Force majors, work employees, etc. as straight men and woman—just has to be proved.
I wrote previously about the California federal court decision holding that proposition 8, the California Constitutional amendment denying marriage rights to gay and lesbian couples, was unconstitutional. That decision was based on a trial that required proof of the claimed governmental interests in denying rights to gay and lesbian couples and their children. Specifically, the trial court found that gay and lesbian partners (and their children) benefited equally from the institution of marriage as heterosexual couples and did no harm to the institution. Earlier this week, the Florida State Court of Appeals ruled that that state’s law barring adoption by gay couples was unconstitutional. That decision was likewise grounded in a trial that demonstrated as a matter of fact that gay and lesbian couples can be as good adoptive parents as heterosexual couples. Indeed, the gay couple who brought the suit had been remarkable parents to two adopted brothers according to the court. In both cases, the evidence demonstrated that gay and lesbians are no different than straight males and females and can equally succeed in marriage and as adoptive parents as their straight counterparts without any demonstrable societal harm.
States and other government institutions routinely justify differential treatment of gays and lesbians on the ground of societal harm. Here in Washington, the State justifies it ban on gay and lesbian marriage because of the perceived harm such marriage would bring to the institution of marriage and because of the alleged societal benefits of encouraging heterosexual couples as parents. The Washington Supreme Court accepted that justification when it upheld the ban on same-sex marriage here.
In Tacoma, an “outstanding,” highly decorated and “well regarded” Air Force major challenged her dismissal from the Air Force for violating the Don’t Ask Don’t Tell statute. Major Witt is a reservist nurse who was suspended from duty because of a sexual relationship with a civilian woman. Major Witt stated she never had sexual relations while on duty or while on the grounds of the air force base. But the husband of a woman who had a relationship with Major Witt complained to the Air Force resulting in her suspension.
Major Witt’s case challenging her expulsion had originally been dismissed by the federal trial court. But on appeal, the Ninth Circuit overturned the federal trial court and held that there had to be a trial on whether the governmental interests claimed by the armed forces—uniform management of the military and the need for unit cohesion—would be significantly furthered by suspending Major Witt and whether less intrusive means could substantially achieve the government’s interests.
So for six days, Major Witt and the Air Force put on witnesses to testify as to Major Witt’s performance on duty and whether the fact that she is a lesbian who exercises her sexual orientation off-duty and off-the air force base undermines the Air Force’s claimed interest in “unit cohesion.” After hearing the evidence, District Court Judge Leighton found that the claimed rationale behind DADT would not be furthered by suspending Major Witt. As Judge Leighton eloquently stated in Court: “I hope you will request reinstatement with the Air Force Reserves and the 446th [her unit]. You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness in this or perhaps any Air Force or military unit.” Assuming Major Witt requests reinstatement, she would be the first openly gay/lesbian armed services member.
As with the proposition 8 and Florida adoption cases, when push comes to shove and evidence is presented to a court, it becomes undisputable that gays and lesbians are no different than heterosexual men and woman and that the claimed rationale for different treatment is not supported by actual evidence of actual experience. To the contrary, the unstated conclusion in all these cases is that laws differentiating between heterosexuals and gays and lesbian are based on biased discriminatory stereotypes.
The history developing here mirrors to some degree the history of how the courts were used as the means to throw out racially discriminatory laws and policies during the civil rights movement. Then, the NAACP lead a systematic series of court cases demonstrating as a matter of fact (not just arguing legal theories) that African-Americans were just as capable (the issue then) as whites in succeeding in graduate schools and colleges so as to deserve admission to public educational institutions reserved for whites. These cases, ultimately led to the landmark decision Brown v. Board of Education where the NAACP demonstrated that separate educational institutions at all levels were inherently unequal and the Supreme Court found racial discrimination in education unconstitutional.
The battle over gay and lesbian rights is being fought and won as a matter of fact in the courts. Sometimes the truth—that gays and lesbians make just as good married couples, adoptive parents, Air Force majors, work employees, etc. as straight men and woman—just has to be proved.
