SANTA BARBARA, CA, – A panel of the Ninth Circuit Court of Appeals ruled yesterday that the government cannot ban openly gay or lesbian service members without proving that such discrimination furthers an “important governmental interest.” The decision in Witt v. United States Air Force, which now returns the case of a discharged Air Force officer to a lower court in Washington state, establishes a stricter standard for successfully defending the policy against constitutional challenge than courts had previously required, and opens the way for further court challenges to the “don’t ask, don’t tell” policy on gay service.
Whether or not the full Ninth Circuit and the Supreme Court will uphold this new standard remains to be seen. But this week’s decision signals the willingness of the courts to consider evidence on a case-by-case basis in evaluating whether banning openly gay troops is necessary for the military to carry out its mission. The wealth of research that has emerged since “don’t ask, don’t tell” became law suggests that a less intrusive policy could meet the military’s goals, and that the current policy fails to do so. If this ruling is upheld, such research is likely to have more bearing on future challenges to the gay ban.