Professor Nan Hunter has an interesting post on her blog, Hunter of Justice, which discusses a pending LGBT rights case. The case involves a challenge to the military's discharge of a woman who engaged in "homosexual conduct." The Court of Appeals for the Ninth Circuit held that the military could not discharge the individual unless it showed that "her conduct hurt morale or jeopardized another government interest." The case will likely present the first opportunity for the Obama administration to make policy on LGBT rights issues.
As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."
Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.
Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.
Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.