Wednesday, May 21, 2008

Witt v. Department of the Air Force (9th Cir. - May 21, 2008)

It's been a good couple of weeks for gays and lesbians in California and the Ninth Circuit. First gay marriage in California. And today the Ninth Circuit holds that heightened scrutiny -- not traditional rational basis -- is the appropriate level of scrutiny for a challenge to the military's continuing efforts to discharge practicing homosexuals. And on that basis not only remands, but does so with language that substantially assists the plaintiff here.

I won't talk about this one too much since it, too, will get a fair piece of press (though not nearly as much as the gay marriage decision). But I did want to make two brief points.

First, it was a good test case. The plaintiff, Major Margaret Witt, was a nurse suspended from the Air Force for having a long term, committed relationship with another woman. She was an Air Force "poster child," and pictures of her were featured in Air Force promotional materials for over a decade. She was then booted out one year short of her twenty years purely because she was in a lesbian relationship.

Them's some good facts. It's a great, great case for a challenge to the current policy.

Second, on a related note, don't forget that this isn't the last word. Sure, Judge Canby concurs and wants even tougher (strict) scrutiny applied than the standard applied by the majority. But it's not likely, in truth, that the Supremes would do so; indeed, that tribunal might well show more deference than even the majority. Whether the Supremes would take this case, however, is far from clear, and a rational conservative bench might well choose to take a different vehicle than the present action.

Though, then again, who can resist hot lesbian nurses?