SANTA BARBARA, CA – If the Pentagon discharges Lt. Col. Victor Fehrenbach without showing that he undermined his unit’s readiness, this would violate the 9th Circuit Court of Appeals decision in Witt v. Department of the Air Force, according to a new report. The 2008 Witt decision holds that gay and lesbian service members cannot be discharged on the basis of the claim that homosexuality generally is detrimental to unit effectiveness. Rather, the Pentagon must show that a service member undermined his or her unit if that individual is to be discharged under “don’t ask, don’t tell.”
The Witt decision applies only to service members based in the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands. At the time that he was reported for being gay, Lt. Col. Fehrenbach was stationed in Idaho. Defense Secretary Robert Gates said on February 2, 2010 that the Pentagon would “devise new rules and procedures in light of the appeals court decision in Witt versus the Department of the Air Force for the areas of the country covered by the appellate court.” Such regulatory revisions, however, have not been forthcoming.
The new report, which was written by Professor Diane H. Mazur, was prompted by anticipated action in Lt. Col. Fehrenbach’s case. Mazur is Professor of Law at the University of Florida College of Law, and Legal Co-Director at the Palm Center, a research institute at the University of California, Santa Barbara. She says that, compliance with federal court decisions, “is not merely a technicality for the military. It is an obligation of constitutional dimension demanded in a system of civilian control of the military.”
J.D. Smith, Co-Director of OutServe, the first-ever organization of actively serving gay and lesbian troops, adds that, “Lt. Col. Fehrenbach’s discharge would show, yet again, that ‘don’t ask, don’t tell’ is harming the military, and that gay troops must demand equal treatment.”
Update: The Palm Center’s legal analysis is its own and the Palm Center does not represent Lt. Col. Fehrenbach in any capacity.