The federal "Don't Ask, Don't Tell" law that prohibits lesbian, gay and bisexual Americans from serving openly in the armed forces has suffered another setback. The Ninth Circuit Court of Appeals refused, on Thursday, to reconsider a recent court decision calling the constitutionality of the law into question. Falling short of the 14 votes needed for a new hearing, the judges of the Ninth Circuit declined to re-visit the case of Air Force Major Margaret Witt. Major Witt was suspended in 2004, and ultimately dismissed from the service in 2007, for her relationship with another woman. In May, the court rejected the government's argument that Witt's dismissal was necessary in order to preserve military readiness. On Thursday, the full Ninth Circuit implicitly agreed by rejecting the Pentagon's challenge to that ruling.
The Ninth Circuit ruling follows campaign pledges by President-Elect Obama to dump the 15-year-old law, and comes on the heels of news that straight service personnel largely do not care about their fellow troops' sexual orientation. A recent Zogby poll, for example, found that, by and large, allowing openly gay service members into the armed forces would be a non-event for those already wearing our nation's uniform. Most already know someone who is lesbian or gay, or believe there are already gay colleagues in their units. And just as the Pentagon was unable to produce a single piece of evidence indicating that Major Witt was anything but a stellar Air Force officer who had the respect of those she served with, the services have also been unable to prop-up the tired and outdated argument that repealing the ban would weaken our nation's forces.
The Ninth Circuit ruling is significant, as it represents a new school of legal thought that stands in stark contrast to rulings in the early-to-mid 90s. Those court opinions largely held "Don't Ask, Don't Tell" to be necessary, constitutional and solidly within the bounds of so-called "military deference." More than a decade later, with overwhelming public support and a growing Congressional consensus for repeal, judges are re-thinking those theories and taking a hard look at how "Don't Ask, Don't Tell" is actually implemented and how our country treats lesbian, gay, bisexual and transgender patriots.