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.