Thursday, May 22, 2008

U.S. Cannot Discharge Homosexuals?

From the AP:

SEATTLE (AP) -- The military cannot automatically discharge people because they're gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal.

This, following what happened in California, should give the LGBT(QISA) community a victory, as well as the sense that tides may be changing in their favor. The newest movement in civil rights issues may have struck two major victories in one week! However, the "Don't ask don't tell" policy may have a chance to stick, if and only if:

The three judges from the 9th U.S. Circuit Court of Appeals did not strike down the military's "don't ask, don't tell" policy. But they reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion.


Under Wednesday's ruling, military officials "need to prove that having this particular gay person in the unit really hurts morale, and the only way to improve morale is to discharge this person," said Aaron Caplan, a staff attorney with the American Civil Liberties Union of Washington state who worked on the case.
My bet is that they can't. I think that the era of institutionalized homophobia may be coming to an end. While we may still have a conservative leaning Supreme Court, I think that this issue is becoming more "gay-friendly." While it would be better to face these issues after the elections this fall, it seems that we are moving towards a more accepting (albeit reluctantly) outlook on LGBT issues in our nation.

From the 9th Court of Appeals:

"When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest," wrote Judge Ronald M. Gould.

One of the judges, William C. Canby Jr., issued a partial dissent, saying that the ruling didn't go far enough. He argued that the Air Force should have to show that the policy itself "is necessary to serve a compelling governmental interest and that it sweeps no more broadly than necessary."
In other words, the right to privacy (the same right invoked in Roe v. Wade) is used as a buffer against governmental discrimination. However, unlike Roe v. Wade, I think there is a case here, since no one else's rights are involved. Therefore, the military has the burden of proof to show that being "gay" is a detriment to the military forces (which both I, and the courts I believe deny).

Could this be the beginning of the end for the movement? For sure this was a serious victory at the least.

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