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District Judge Rules in Favor of Major Witt in DADT Case

by Professor Will Huhn on September 28, 2010

in Constitutional Law,Equal Protection,Wilson Huhn

     Judge Ronald B. Leighton of the Western District of the State of Washington has ordered the Air Force to reinstate Major Margaret Witt.  His ruling is available here, and is described below.  

     Major Witt, a flight nurse in the Air Force, was discharged from the military service because she is a lesbian.  Judge Leighton originally decided against Major Witt.  He found that the federal law commonly known as "Don't Ask, Don't Tell" is constitutional because it has a rational basis: specifically, that Congress had made findings that the open service of gays and lesbians in the military would harm unit morale and cohesion.  The Ninth Circuit Court of Appeals reversed Judge Leighton's ruling  and ordered a retrial under two new standards.  First, the Court of Appeals directed the trial judge to apply the "intermediate scrutiny" standard, not "rational basis."  Under the rational basis test Major Witt had the burden of proving that the law was unconstitutional; under intermediate scrutiny the government had the burden of proving that the law was constitutional.  On remand, though, the Judge said that this change in the burden of proof made no difference in his ruling.  Judge Leighton said:

     As in other cases where heightened scrutiny has been applied, the burden is on the government to justify the law and its intrusion into the lives of those complaining about its application to them. See City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 447, 105 S. Ct. 3249 (1985). Were the burden on the plaintiff, the findings and conclusions of this Court would be the same.

     This portion of Judge Leighton's decision is significant because the ruling of the Ninth Circuit ordering him to apply the "intermediate scrutiny" standard is premature, at best.  In Lawrence v. Texas (2003) the Supreme Court applied the rational basis test in striking down a law that made homosexual intercourse a crime.  The Court did not expressly rule out applying a higher level of scrutiny, but it certainly did not find that intermediate scrutiny applies.  The Ninth Circuit jumped the gun raising the standard to review to intermediate scrutiny in gay rights cases.  In effect, however, Judge Leighton found that he would have reached the same conclusion under the rational basis test.

     The second change in legal standards that the Court of Appeals ordered Judge Leighton to make was to consider the constitutionality of DADT not "on its face," that is, in general as applied to the entire military service, but rather "as applied" specifically to Major Witt.  This change was very significant; it appears to be why the trial court changed its mind and ruled in favor of Major Witt on remand.  Judge Leighton made the following findings with respect to Major Witt:

     The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. The 446th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women. There is no evidence before this Court to suggest that their service within the unit causes problems of the type predicted in the Congressional findings of fact referenced above. These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds.

     The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unitâs ability to carry out its mission. Good flight nurses are hard to find.

     The ruling of the judge in this case is, of course, limited to Major Witt.  It does not mean that DADT is unconstitutional as applied to every member of the military service.  This is similar to the result that the Supreme Court reached in the case of City of Cleburne v. Cleburne Living Ctr. Inc that Judge Leighton cited in the first quoted passage above.  In that case the Supreme Court found that the City of Cleburne's zoning laws unconstitutionally prohibited the building of a particular group home for the mentally retarded; the Court did not strike down similar zoning laws all across the country.  Instead, it was necessary for every single group home to challenge restrictive zoning laws in every community on a case by case basis.  The same will be true for gay and lesbian servicemembers in light of Judge Leighton's decision in this case.  Nevertheless, this is a major victory for our gay and lesbian soldiers.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.


Dan S. September 28, 2010 at 11:16 pm

Thanks for the clear explanation. Now I wonder…..can the situational vs universal application of laws be applied to homosexual couples seeking the right to marry?

Professor Will Huhn September 29, 2010 at 4:57 am

I worry that the situational application (the "Witt Standard") may not be upheld by the Supreme Court on appeal. There is an Equal Protection case – New York City Transit Authority v. Beazer – where the Supreme Court ruled that under the rational basis test the law had to be evaluated in terms of the entire group that was affected, and not some sub-group that might have a better claim. That case involved a municipal ordinance that prohibited the Transit Authority from hiring drug addicts; not even persons who had been successfully maintained on Methadone for more than a year, and not even for non-safety-related jobs like cleaning cars or stations. The Supreme Court said that the District Court was not permitted to carve out jobs or sub-groups for whom the ban was irrational, but rather had to evaluate the law as a whole – and it upheld the law.
When we move outside the employment context to the marriage context, I absolutely think that the Court will adopt, as you say, a "universal context" rather than a "situational context" to evaluate the law.

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