DAVID GREENE, Host:
NPR's Martin Kaste reports.
MARTIN KASTE: Former Army Sergeant Darren Manzella, who's gay, was one of those to testify.
DARREN MANZELLA: 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: Witt's lawyer, Jim Lobsenz, says the appeals court wants these discharges to be considered case by case.
JIM LOBSENZ: 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: Constitutional law scholar Stewart Jay says this Witt Standard makes it hard for the military to defend its policy.
STEWART JAY: 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.
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: Elaine Donnelly of the group Center for Military Readiness says the administration should have taken the matter straight to the U.S. Supreme Court.
ELAINE DONNELLY: This is not how our legal system should work.
KASTE: Donnelly says it's just bad precedent for courts to be micromanaging military discipline.
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: Martin Kaste, NPR News, Seattle.
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