Testimony: Military Not Hurt By Presence Of Gays

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In Tacoma, Washington, a federal court is hearing the case of an Air Force Reserve flight nurse, who was dismissed under the "don't ask, don't tell" policy on gays in the military. The case comes on the heels of another court ruling that declared the Pentagon policy unconstitutional.

DAVID GREENE, host:

You're listening to ALL THINGS CONSIDERED from NPR News.

The Senate will soon take up a bill repealing the ban on gays and lesbians in the military. That's the pledge from Majority Leader Harry Reid. The repeal has already passed the House, but it's been stalled in the Senate where it faces a Republican filibuster. Meanwhile, federal courts on the West Coast have been making it harder for the military to enforce the ban.

NPR's Martin Kaste reports.

MARTIN KASTE: Something unusual is happening in a federal courthouse in Tacoma, Washington. Service members are taking the stand to say they think the military is not harmed by the presence of gays and lesbians. The unusual part is that their opinions now matter to the court.

Former Army Sergeant Darren Manzella, who's gay, was one of those to testify.

Sergeant DARREN MANZELLA (Retired, U.S. Army): They just wanted our personal story brought into this case, to show that I was still in for nearly two years after I was open, and the military didn't fall apart.

KASTE: Manzella just testified on behalf of Margaret Witt, a former Air Force flight nurse who's suing to be reinstated after being discharged for being a lesbian. Two years ago, the Ninth Circuit Court of Appeals bolstered her case with a surprising ruling. It said the Air Force couldn't discharge her just for being a lesbian.

Witt's lawyer, Jim Lobsenz, says the appeals court wants these discharges to be considered case by case.

Mr. JIM LOBSENZ (Attorney): The military can only do this to you if the military can prove that you actually cause a problem in your unit as a result of your sexual orientation. And if they can't prove that, then they can't discharge you.

KASTE: Hence, the testimony from service members, including one former member of her unit who said on Monday that Witt's discharge hurt unit morale and even influenced his decision to leave the military.

Constitutional law scholar Stewart Jay says this Witt Standard makes it hard for the military to defend its policy.

Professor STEWART JAY (Constitutional Law, University of Washington Law School): Well, I think ultimately it will be impossible.

KASTE: Jay is a professor at the University of Washington Law School and has followed the Witt case closely. He says it's simply not practical for the military to have to show specific harm every time it wants to discharge somebody for being gay.

Prof. JAY: It reminds me in a strange way of the situation prior to Brown versus the Board of Education, where school districts had to show that separate but equal facilities actually were equal. It would have been administratively impossible for school districts to make that showing case after case after case.

KASTE: Right now, this idea that the military has to show harm applies only to courts in the Ninth Circuit. It played a role in the ruling last week by a federal court in California, which found that the ban on gays was unconstitutional.

Supporters of the ban say the Obama administration should have fought harder to challenge the Ninth Circuit ruling.

Elaine Donnelly of the group Center for Military Readiness says the administration should have taken the matter straight to the U.S. Supreme Court.

Ms. ELAINE DONNELLY (President, Center for Military Readiness): This is not how our legal system should work.

KASTE: Donnelly says it's just bad precedent for courts to be micromanaging military discipline.

Ms. DONNELLY: If a district judge or any federal judge can rule in favor of the dissenting soldier, and thereby tell the military how to handle its affairs, you have a chaotic situation.

KASTE: And in the Witt case, at least, the judge seems to agree. On Tuesday morning, as he faced another day of testimony about how gays may or may not affect military readiness, Federal Judge Ronald B. Leighton said, quote, "Congress ought to be doing this."

Martin Kaste, NPR News, Seattle.

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