Does future hold spate of ‘don’t ask’ legal battles?

Air Force Major Margaret Witt won her court battle to be reinstated into the military last week, after a federal judge said the military could not prove her sexuality had a negative effect on unit morale. Since legislative action to end the military's ban on openly gay service looks stalled for now, Witt's case points toward what some gay activists say is a productive, if more gradual challenge to the "don't ask, don't tell" policy forbidding openly gay military personnel to serve: chipping away at the policy via individual court cases.

The legal director of Washington's branch of the American Civil Liberties Union (ACLU) said on MSNBC today that Witt's case sets a key precedent for any member of the military who is discharged in the Ninth Circuit of Appeals, which covers Western states that account for around 20 percent of the national population.

"They'll have an opportunity to go to court and show that their sexual orientation had no effect, no negative consequence on their unit or the military's ability to do their mission or do their job," ACLU's Sarah Dunne said.

Witt's case has created a higher bar for military discharges in the region. In 2008, the Ninth Circuit ruled that the military had to prove that any person discharged under "don't ask" also had a negative effect on larger military goals, like unit cohesion and morale.

The federal judge who originally tossed out Witt's case, Judge Ronald Leighton, was forced to reevaluate it with the the circuit's new, higher standard, and ruled Friday that she must be reinstated. He said the military couldn't prove that Witt--who said on MSNBC today that her unit is behind her "100 percent"--negatively affected cohesion or morale in the Air Force.

The Department of Justice will most likely appeal the decision. Justice layers have already announced they will continue to fight for the unpopular policy after a California federal judge ruled "don't ask" unconstitutional earlier this month. But if Lieghton's decision stands, Witt may become the first openly gay member of the military. The New York Times reports that she was outed in 2004 when the spurned husband of a woman she was dating informed the Air Force Witt was gay.

But what about servicemen and women who don't fall under the Ninth Circuit's jurisdiction?

Defense Secretary Robert Gates has already made it more difficult for men and women to be discharged under the policy, saying that only a general or an admiral is allowed to initiate the process to expel someone for being openly gay. The new standards also make it harder for a third party, such as a jilted former partner, to out a member of the military.

But the conflicting standards handed down by the courts are sure to lead to confusion. Indeed, Leighton himself has complained that Congress should be in charge of redefining the policy, not the courts.

"Is this the right venue for this decision to be made?" Leighton asked, according to The Tacoma News Tribune. "No. But I have a job to do." He said the Air Force attorneys wanted him to overturn the Ninth Circuit's ruling by affirming their discharge, which he couldn't do.

(Photo: Major Witt/AP.)