TOKYO — As the military considers its options in the latest round of court action surrounding its "don’t ask, don’t tell" policy regarding gays, some servicemembers are considering theirs.
In her uniform, on an Army base far from home, "Stacy" searched the headlines in late May and wondered if the results of a U.S. appeals court ruling in Washington state meant she could come out as a lesbian.
"At first, I thought I could be a little more open," said Stacy, who agreed to an interview if her name, rank and unit remained anonymous. "Then I started questioning it a little."
But asking for that clarification would bring complications of its own. Whom could she ask without risking disclosure of her own sexuality?
"I have to be careful about who I talk to," she said earlier this month. "Personally, I get scared. It’s my career."
Civilian lawyers and experts familiar with "don’t ask, don’t tell" said gay servicemembers should remain guarded, despite a federal court ruling May 21 that favored a lesbian Air Force major suing to get her job back.
In fact, another ruling in the federal court system June 9 seems to have sided with the military’s long-standing argument that open homosexuality in the ranks would lower morale and jeopardize force readiness.
But, experts also say, May’s ruling for the Air Force major could change the way the policy is analyzed in the future. Moreover, these recent, dueling decisions might mean the issue is one step closer to the U.S. Supreme Court.
"The probability of Supreme Court review has increased today," said Jim Lobsenz, a lawyer representing Maj. Margaret Witt, the woman who is suing the Air Force. "But who knows?"
Lobsenz and others agreed the military will likely appeal the ruling in Witt’s case. The Air Force has 90 days to appeal. On June 12, an Air Force spokesman said the military is considering its options.
In Witt’s case, the decision by a three-judge panel from the U.S. Court of Appeals for the 9th Circuit in San Francisco made two important distinctions, experts said.
Witt, an Air Force Reserve flight nurse, was in her 19th year of service when the military threatened to dismiss her because of her homosexuality, according to court papers in the case.
She fought the dismissal, lost an argument for an injunction and ultimately saw her case dismissed from U.S. District Court, according to Lobsenz.
In the appellate decision, the judges asked the military to show how Witt’s presence with her unit at McChord Air Force Base in Tacoma hurt morale or weakened force readiness within the unit. That level of scrutiny has never been required before by the military in "don’t ask, don’t tell" cases, experts said.
"The government has to show that the law makes sense as it applies to this particular person," Lobsenz said. "She’s the world’s greatest flight nurse. She has a flawless record. We got affidavits from her unit and they could care less that she’s a lesbian."
The ruling also drew a link to a case from a few years ago, in which the U.S. Supreme Court struck down a Texas law that barred consenting adults from homosexual activity at home.
That could create a stronger argument that servicemembers also are entitled to privacy in their own homes when it comes to consensual sex, according to Tobias B. Wolff, a law professor at the University of Pennsylvania who has spent more than a decade studying "don’t ask, don’t tell."
In Boston, another three-judge panel with the U.S. Court of Appeals for the 1st Circuit agreed with the idea that the military should do more than prove homosexuality to warrant dismissal, Lobsenz said.
But the 1st Circuit judges also found, in the end, that ensuring national security outweighs arguments from 12 former military members who say their rights were ignored when they were dismissed for being gay.
It’s those decisions that prove most frustrating, according to "Jeffrey," a recently retired Marine who also asked that his name, age and rank be withheld.
Jeffrey was in the Marine Corps when "don’t ask, don’t tell" went into effect. He remembers the debates among colleagues and friends, who didn’t know he is gay. He also says he can understand some of their concerns, especially when it came to sharing infantry-like living and showering areas.
But, he says, he also remembers when it was hard for women to be promoted as senior enlisted members and commanders.
"I don’t have all the answers," he said. "Discrimination is the worst thing. Discrimination is not the answer."
Many options remain as to the next step but ultimately, Lobsenz and others said, the "don’t ask, don’t tell" policy depends on two things: future court decisions and the upcoming presidential election.
Republican Sen. John McCain has said he supports the current policy, though he has said a review of a 15-year-old personnel rule could be warranted. Democratic Sen. Barack Obama has said he could see the policy repealed, but he also has said he wouldn’t make it a litmus test for choosing top commanders.
And with the two competing decisions on opposite sides of the country, the issue is far from over.
"Tell them not yet. Please not yet," Lobsenz said about coming out while still in uniform. "Absolutely not until the case is final. And that could be years."
That’s hard for soldiers like Stacy to hear.
"It really does hurt," she said. "I love being an NCO. I love leading troops from the front. Why should I have to sacrifice my love life and my career?"