http://online.wsj.com/article/SB124268952606832391.htmlMAY 19, 2009
Obama Avoids Test on Gays in Military
By JESS BRAVIN and LAURA MECKLER
WASHINGTON -- The Obama administration has decided to accept an appeals-court ruling that could undermine the military's ban on service members found to be gay.
A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case.
The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there.
The move comes as President Barack Obama attempts a balancing act on gay rights. He was elected with strong support from the gay community and promised action on a number of issues. But mindful of the complex politics, the White House has moved slowly.
The "don't ask, don't tell" policy, which dates back to the Clinton administration, is a case in point. As one of his first acts as president in 1993, Bill Clinton attempted to end the military's ban on service by homosexuals. An uproar ensued, and eventually Mr. Clinton signed legislation allowing gays to serve as long as they weren't open about their sexual preference.
As a candidate, Mr. Obama said he would seek to repeal the ban on gays in the military. But since he has taken office, administration officials have been less clear about the matter and its timing.
Last week, the White House was pressed to explain whether the administration would intervene to protect Lt. Dan Choi, a West Point graduate and Arabic speaker in the Army National Guard.
He announced he was gay as part of a plan to challenge the law. White House press secretary Robert Gibbs said the president believes the issue should be dealt with through legislation.
In the appeals court case last year, the Bush administration argued that Air Force Maj. Margaret Witt, who was discharged after authorities discovered she had a relationship with a woman, had no grounds to challenge her expulsion in light of congressional findings that gays and lesbians in uniform "create an unacceptable risk" to military morale and "unit cohesion."
But the court ordered the government to show why military discipline would be imperiled by the specific presence of Maj. Witt.
President Obama faced an early March deadline to file an appeal to the Supreme Court. Obama aides twice filed requests asking for a one-month extension, which the court granted. The administration let the most recent deadline pass without seeking another extension.
A Justice Department spokeswoman said the government would defend the law at the trial over Maj. Witt's dismissal. The decision not to appeal to the Supreme Court "is a procedural decision made because the case is still working its way through the regular judicial process," she said.
White House spokesman Ben LaBolt said the president remains committed to repealing the law "in a sensible way that strengthens our armed forces and our national security" but added: "Until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."
Some advocates for gay rights say they are becoming frustrated with what they see as mixed messages on the law on gays in the military. "This is a positive step but it's in the middle of a slew of negative steps so we're not really sure what's going on," said John Aravosis, an advocate who blogs on the issue.
Mr. Aravosis said he is concerned that the White House Web site section on civil rights was recently edited and some of Mr. Obama's promises to the gay and lesbian community were no longer listed, including his promise to repeal the don't ask, don't tell policy. After complaints, a reference to the military policy was restored.
White House spokesman Ben LaBolt said that the changes were made to "reflect the president's broad agenda," but that his commitment to gay and lesbian issues has not changed. "Any suggestions to the contrary are false," he said.
Other gay-rights advocates are more patient. "We are convinced that the administration is committed to overturning this policy and has plans in place to accomplish this goal and it will be accomplished in due time," said David Smith of the Human Rights Campaign, a gay rights advocacy group.
Other priority issues for gay advocates loom as well. Mr. Obama will soon nominate a new Supreme Court justice, who will likely be forced to answer questions by the Senate about his or her view of various gay-rights issues that may arise -- particularly the constitutionality of bans on gay marriage, which has advanced in many states in recent months. The administration also must decide whether to allow gay and lesbian partners of workers at the federal court to qualify for health-care benefits.
Maj. Witt joined the Air Force in 1987 and received multiple commendations and decorations for her service. She "was made an Air Force 'poster child' in 1993," the opinion from the Ninth U.S. Circuit Court of Appeals said, and the service used her photo in recruitment materials for more than a decade.
Maj. Witt also had a relationship with another woman from July 1997 through August 2003, the opinion said. The partner was not a military employee and the couple's home was in Spokane, Wash., 250 miles from the base where she was stationed.
According to the lawsuit, Maj. Witt did not tell anyone in the military that she was homosexual. In July 2004, however, the Air Force began investigating her for homosexuality and five months later began proceedings to discharge her. The action left her less than a year short of the 20-year service requirement to obtain a full Air Force pension.
The Ninth Circuit had rejected similar suits in the 1990s. In 2003, however, the Supreme Court struck down sodomy laws, ruling that the Constitution gives homosexuals "the full right to engage in their conduct without the intervention of the government."
Citing that case, the Ninth Circuit held that the government would have to do more than show that the don't ask, don't tell policy furthered an important interest. Rather, at trial it must show how expelling Maj. Witt "significantly furthers the governments' interest and whether less intrusive means would" have worked just as well.
"Only then can DADT be measured against the appropriate constitutional standard," Judge Ronald Gould wrote for the court.
The ruling suggested the judges were skeptical that Maj. Witt, a nurse, posed a threat to military discipline.
thought some may be interested in this ... its being challenged in the courts right now ...
and Toadie ... do u still believe that this dude DID NOT KNOW THE OUTCOME of him coming out ..
its right there in BLACK and WHITE ... it was PART OF A PLAN to challenge the law ...
AND ... I am QUITE SURE that every gay in the military KNOWS ABOUT THIS CASE ... and if he for a second thought that him ANNOUNCING it to the world would not get him booted after what the military did in this case .. HES AN IDIOT .. and Idiots don't graduate from West Point ..
Your Welcome .... 
Either you are lying or you need to improve on your communication skills.