Legal Case Looms for Justice Department

Maj. Margaret Witt is challenging the Air Force's attempt to discharge her under DADT, likely forcing the Obama administration to take its first official action on the ban against gays and lesbians serving openly.

BY Kerry Eleveld

March 12 2009 11:00 PM ET

Margaret Witt x390 (fair use) | advocate.com

Osburn, a cofounder of
SLDN, says the movement has always argued that the government
had no evidence demonstrating that letting LGBs serve openly in
the military would hurt unit morale or military
preparedness.

"We have tried for
the last 15 years to get the government to defend themselves
and the courts have just looked the other way," he says.
"This case is saying, 'No, we won't turn a blind eye to this,
you need to give us evidence that the law is sensible on a
case-by-case basis.'"

Even though the
decision doesn't overturn the policy, "It's a dramatic change
of interpretation," says Wilson. "What
Witt

has really done that is kind of fun is, it has implied that
this behavior was too remote to be enforced under this policy
-- that it's not reasonable to enforce the policy for something
that the Major never brought to anyone's attention and, in
fact, was fastidiously closeted." Witt had been in a
committed relationship with a civilian woman at the time and
lived miles away from the military base.

But Wilson, who
considers the ninth circuit's ruling a win, also sees a
potential pitfall with the interpretation.

"I don't want to keep
'don't ask, don't tell' and let people stay in if they are
fastidiously closeted," she explains. "That's not a victory
to me. The victory is that there are some things that are too
remote for the government to be regulating -- too private and
too personal."

Wilson wagers that the
DOJ may let the ruling stand since it merely sends the case
back to the lower court to be argued, which has yet to
happen.

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