From the Associated Press:

A pressing legal reality for the “don’t ask, don’t tell” standard for gays serving in the military is that the 9th U.S. Circuit Court of Appeals has already struck down the way it’s practiced in much of the Western United States.

The 2008 ruling, while largely overlooked, would force the military to apply a much higher threshold in determining whether a service member should be dismissed for being gay.

The military branches say they haven’t changed how they go about issuing “don’t ask” dismissals in the states covered by the 9th Circuit — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

But if the military is found to have been discharging people within the 9th Circuit without applying the higher standard, it could be forced to pay punitive damages in federal court, some lawyers say. Furthermore, if the military cannot demonstrate a gay member’s discharge would hurt the unit, that person might end up serving openly — even as others around the globe continue to be discharged.

[Rep. Vic Snyder (D-AR)] suggested that the Defense Department cure the problem by making the venue for all “don’t ask” dismissals fall within the 9th Circuit, so that all service members would have the same rights.

The issue is typically referred to as the “Witt standard,” named after Air Force Maj. Margaret Witt. She was a decorated flight nurse at McChord Air Force Base in Washington who shared a house in Spokane with her longtime partner and was honorably discharged two years short of full retirement. She then sued.

A three-judge panel in the 9th Circuit upheld “don’t ask, don’t tell,” but granted constitutional protections to gay service members targeted for discharge, saying the military had to show that their firing furthered the goals of the policy, such as military readiness or unit cohesion. The decision became law as soon as it was issued, but it wasn’t until last June that Obama announced that the government would not appeal.

In other words, instead of the defendant proving that she/he is an exception to the broad “gays are grody” premise of DADT, the plaintiff must now prove the broad rule as it pertains to the individual servicemember.

This is, I think, a game changer.

If Rep. Snyder’s proposal is approved, the Witt Standard would be used in every DADT prosecution throughout the military. And even if it isn’t approved, the Witt Standard already applies to military posts within the wide jurisdiction of the 9th Circuit Court of Appeals. That’s notable because it would include high-profile defendant Lt. Col. Victor Fehrenbach.

Maj. Witt and Lt. Col. Fehrenbach

The ruling also reinstated Witt’s lawsuit against the Air Force, which is headed for trial in federal court in Tacoma. Witt argues that her dismissal actually hurt troop readiness and morale. There was a shortage of flight nurses at the time, she says, and one of her colleagues, a sergeant, resigned in protest of her dismissal.

Lt. Col. Victor Fehrenbach, an F-15 fighter pilot from Idaho, said the Air Force refused to apply the higher standard during his discharge proceedings last year.

“If the burden of proof was on the Air Force to prove that my presence was detrimental to good order, discipline, morale and unit cohesion, there would have been a different outcome,” he said. “If the Witt standard had been followed, I would be continuing to serve with no problems whatsoever.”

When gay service members sued over their dismissals in the first decade of the policy, courts historically accepted the military’s argument that having gays in the service is generally bad for morale and can lead to sexual tension.

But the judges in the Witt case said the legal landscape changed when the U.S. Supreme Court in 2003 struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy. The 9th Circuit said that the landmark decision opened the door for the courts to take a fresh look at the constitutional rights of gay Americans.

We now have a DADT repeal bill in both the House and the Senate. President Obama is (theoretically) on board. Top US military leaders say not only that it isn’t necessary, but that it’s actually harmful. The vast majority of Americans, in study after study, say the law should be pitched.

Use of the Witt Standard is not a replacement for repeal. It does not put an end to this discriminatory and thoroughly un-American law. It is not the goal that we seek.

But if it’s applied as required by federal law in the 9th Circuit, it could stop the bleeding while we wait for Representatives and Senators to do their jobs.

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Mmm, gives me shivers. Just like the old days.

John “Called His Wife A Cunt” McCain was on Meet The Press yesterday, and he pulled out his “dick fingers” again, this time when talking about his hypocrisy on Don’t Ask Don’t Tell:

Of course, to explain his hypocrisy, McCain had to move his goal posts, changing the definition of “military leaders” to include the level below the actual leaders of the military. I don’t know, maybe he’s the granddaddy of message board trolls.

But just for the record, when Admiral Mullen said he was speaking “personally”, he was trying to make it clear that he didn’t hold the opinion that DADT should be repealed because somebody ordered him to. These were his views, not those of President Obama or Defense Secretary Robert Gates.

Obviously.

John McCain, you have yet again proven yourself to be a horrible, hypocritical, ego-maniacal, lying, bigoted scumbag. Acquaint yourself with the concepts of Patriotism and the most basic American ideals. You’re running out of time.

(P.S. Jed at DailyKos has the video proving that McCain also lied about the bailout yesterday in the video above. Because that’s what he does best!)

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I’d hoped this meme would go away, but bloggers keep claiming that in his State of the Union Address President Obama promised a repeal of Don’t Ask Don’t Tell (DADT) this year.

The simple truth is that President Obama didn’t say that. Here’s what he said (Don’t worry, it’s cued for that sentence):

This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.

Now forgive my mangling of terminology, but I remember from school that a sentence must make sense without the prepositional phrases. Removing President Obama’s long ass prepositional phrase, we have this:

This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.

He did not say they would repeal the law this year. He said they would work on it this year. Of course, I hope DADT repeal happens this year, and I’m cautiously optimistic of our chances.

I also think Obama is wise to let highly decorated women and men in uniform make the case on camera to Congress rather than open the way for Republican outcries of partisan politics.

But the Wordsmith-in-Chief didn’t make the promise of repeal in 2010, no matter how much we wish he had.

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Fortunately for me, Lt. Col. Victor Fehrenbach had the same question, which he asked on The Rachel Maddow Show last night.

Visit msnbc.com for breaking news, world news, and news about the economy

Also from The Rachel Maddow Show, Senator McCain is a big ole hypocrite when it comes to DADT. (He’s a hypocrite in a lot of other ways, but let’s stay on task.)

Visit msnbc.com for breaking news, world news, and news about the economy

Finally, here’s a tweet from the Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen. I cannot overstate the importance of his support yesterday. Neither can I overstate my appreciation for it.

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Peter Sprigg of the Family Research Council (a sister company to Focus on the Family) was on Hardball with Chris Matthews tonight alongside SLDN’s Aubrey Sarvis to talk about DADT. This video should be set to the last thirty seconds of the segment when Sprigg let the cat out of the bag. See transcript below.

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Matthews: Do you think we should outlaw gay behavior?

Sprigg: Well, I think certainly it’s defensible.

Matthews: No, I’m just asking you, should we outlaw gay behavior?

Sprigg: I think that the Supreme Court decision in Lawrence v Texas, which overturned the sodomy laws in this country, was wrongly decided. I think there would be a place for criminal sanctions against homosexual behavior.

Matthews: So we should outlaw gay behavior.

Sprigg: Yes. [laughs]

Keep in mind that a year ago, Peter Sprigg said that gays should face more taxes than straight people, and a year before that he went on television to suggest that gays be rounded up and “exported”.

Click here to view the embedded video.

Make no mistake: Peter Sprigg is one of the few anti-gay leaders who actually speaks his mind, and the rest of them are thinking exactly what he says. I shudder to think what he keeps to himself.

Incidentally, I hope someone thinks to enter this video into evidence in Perry v Schwarzenegger, the Prop 8 trial. If ever we had evidence of anti-gay animus being whipped up, this is it.

(Hat tip to Alvin McEwen.)

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From my count, we got two indications from today’s hearing.

Sen. John McCain’s opening remarks include the statement that “this policy has worked successfully in my view.” (via Kerry Eleveld’s twitter stream) I would hardly call Sen. McCain moderate, especially considering his unabashedly anti-gay statements during last year’s failed campaign for the presidency, but it’s still disheartening to hear such nonsense go unchallenged.

More troublesome, though, is Dr. Stanley’s response to a question from Sen. Roland Burris of Illinois about what happens to current DADT investigations if DADT is repealed. Stanley’s answer was, “if there are pending cases, they would fall under the existing statute. That’s about all I can say about that at this time.” (again from Kerry Eleveld’s coverage)

We had hoped, or at least I had hoped, that DADT’s repeal would end the destruction of honorable servicemembers’ lives. That doesn’t seem to be the case, at least not according to the testimony of this candidate.

Lt. Choi and Lt. Col. Fehrenbach

Based on this testimony I have to wonder: Is it too late? Should current DADT victims give up their personal fights for justice to save their veterans benefits? It might be too late to save their careers, but can they save their futures?

Lt. Dan Choi came home from an extended tour of duty in Iraq with Post Traumatic Stress Disorder (PTSD). If he gets a less-than-honorable discharge (which is guaranteed if he fights his firing), he will lose his veteran health benefits and, at least to my understanding, his PTSD would be used as a preexisting condition to deny coverage from health insurance companies.

Lt. Col. Victor Fehrenbach is now about a year away from his 20-year retirement date. Remember, if he continues to fight for justice, he will lose retirement funds of $46,000 per year for the rest of his life, all of the lifetime veteran health benefits he has earned, and $80,000 in separation pay.

All this because the cases came a year before congress had the courage to act.

Is this how America treats its veterans? Is it really?

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I’ve been saving his story for about a month now, since Capt. Rankin marched beside Lt. Dan Choi at the Leonard Matlovich Memorial. Forgive me from breaking my self imposed word limit and Veterans Day format, but this hero is more important.

A gay man himself, semi-closeted by necessity, Capt. Rankin refused to “diagnose” anyone as homosexual, or to refer a gay person to a clergymember who he didn’t know would be affirming. Countless lives–countless–were saved from ruin or worse by Capt. Rankin* . The following is only part of his story, told in a speech in 2006. Please, please, please, follow the link and read the whole thing.

“Permission to join the mess, Captain,” he panted. “Sorry to be late sir—a couple faggots wanted a tour of the ship and I had to chase them away.”

All morning we’d been offering tours to families and to young women eager to meet a sailor. This was routine when we were not underway. The Navy considered these ship visits great public relations, as long as the visitors were heterosexual families and single women. Men who might be gay need not apply.

“Permission granted, Lieutenant,” the captain replied. “Take your seat.” Conversation around the table continued.

I sat there seething, staring at my plate. Faggot. Faggot. It rang in my ears. And I began to remember all the times during the 24 years when I’d listened without comment to shipboard homophobic slurs and “jokes.”

I thought of all the conversations started, in sickbay or on the bridge at sea, and then broken off, because a shipmate wasn’t sure I wouldn’t turn him in if he told me his secret. I thought of the gutsy sailors who did take the risk, because of their own courage, and because scuttlebutt had it—correctly for once– that what was said in my sickbay stayed there. I was safe to talk to.

But so often I had remained silent in my medical office, letting those who needed to talk “teach me” about gay life. For whatever reason, I couldn’t simply say “I understand. I’m gay too. I know what it’s like to come out to a close friend or family member who’s promised ‘unconditional love,’ only to find that love wasn’t so unconditional after all. I know about being in the closet at work, making up fictitious dates with the opposite sex. And buddy I know exactly what it’s like to lose a lover—it hurts like hell.” Those empathetic words remained largely unsaid. The Navy was my last closet—until that June lunch in the wardroom.

Sitting at the table with those men, I felt my cool rationality slipping away. I ceased to be a medical officer and a role model for the corpsmen under my command. I was no longer a psychiatrist trained to understand motivation and behavior. I had no more excuses for all the young officers who responded to peer pressure with pathetic attempts to be “more macho than thou.” And I had no more excuses for my own silence; that silence was compliance.

Right there in the wardroom, before God and the whole U.S Navy, I became simply one pissed off queer.

Facing the immediate source of my discontent, who was happily eating away, I commented in what I thought was a quiet conversational tone of voice, “Lt. Jones, I was offended by your use of the word ‘faggot.’ Using that word is like calling someone a nigger, a spick, wop, kike or cunt. It automatically defines one as a bigot. Bigotry, Lieutenant, is not a quality the Navy usually looks for when it selects its officers for promotion. Now that you know that, I’m sure you’ll not use the term again.”

He sat there with the chipped beef on his fork, halfway between his plate and his open mouth. The other officers looked from him to me and back, speechless.

For about fifteen long seconds I felt like I’d just told the dentist, “oh forget the novocaine, just go ahead and drill,” one of those remarks you instantly want to retract.

But I couldn’t retract it. It hung there in the air. I thought if I didn’t say something to get us past the moment, the room would explode. “Captain, would you please pass the catsup,” I asked calmly, “My beef’s a little tough.” The captain passed the catsup, there were sighs of relief, and the talk turned again to the Niners vs the Raiders.

Again, click through to keep reading. This is not the end of the story.

Captain Rankin, you have no idea the good you’ve done. Thank you so very much for serving your country.

* Incidentally, that strategy is not possible under DADT. Just yesterday, the American Medical Association called for the repeal of Don’t Ask Don’t Tell, because doctors may be and have been required to break confidentiality in order to out a lesbian or gay person who thought they were safe talking to their doctor.

Seriously.

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While he complied with the Don’t Ask Don’t Tell law by refusing to answer “the question” without legal representation, the investigation continued until he was finally fired for being gay.

Sgt. Copas, thank you for serving your country.

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Her civilian coworker remains protected from workplace discrimination based on sexual orientation.

Lt. Brian, thank you for serving your country.

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While military investigators question whether his murder while on duty at Camp Pendleton was motivated by his sexuality, family members say that he had recently confided in them that he was being harassed for being gay but refused to report the incidents because doing so would begin a DADT-based investigation.

Petty Officer Jonathan Campos, the chief suspect in Seaman Provost’s murder, committed suicide in his cell on August 1, 2009.

Seaman Provost, thank you for serving your country. Rest in peace.

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