The ever criticized military policy of Don’t Ask, Don’t Tell took a brutal hit the other day out of the 9th Federal Circuit Court of Appeals. The action, WITT v. DEP’T OF THE AIR FORCE, was brought by Plaintiff-Appellant Major Margaret Witt (“Major Witt”) sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander (“the Air Force”) after she was suspended from duty as an Air Force
reservist nurse on account of her sexual relationship with a civilian woman. Major Witt alleged that 10 U.S.C. § 654, commonly known as the “Don’t Ask, Don’t Tell” policy (“DADT”), violated substantive due process, the Equal Protection Clause, and procedural due process. She sought to enjoin DADT’s enforcement. The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The 9th Circuit reversed the District Court and remanded in part, and affirmed in part.
Generally, DADT, 10 U.S.C. § 654, permits the discharge of members of the armed forces on account of homosexual activity. Major Witt argued that DADT violates substantive due process, the Equal Protection Clause, and procedural due process.
Historically, the Ninth Circuit has considered and rejected similar claims, see, e.g., Holmes v. Cal. Army Nat’l Guard, 124 F.3d 1126, 1136 (9th Cir. 1997) (rejecting an Equal Protection Clause challenge to DADT under rational basis review); Philips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir. 1997) (same); Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980) (rejecting procedural due process and substantive due process challenges to a Navy regulation forbidding homosexual service in the Navy). However, Major Witt argued that Holmes, Philips, and Beller were no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a Texas statute that banned homosexual sodomy. Accordingly, to resolve this appeal, the 9th Circuit considered the effect of Lawrence on its prior precedents.