On Friday in Tacoma Washington, U.S. District Court Judge Ronald Leighton ruled that the government may not lawfully discharge Air Force nurse Major Margaret Witt under Don’t Ask Don’t Tell. Leighton’s decision reinstates the decorated nurse, who was honorably discharged about five years ago after a jealous husband reported she was having an affair with his wife.

Judge Leighton had dismissed Witt’s case back in 2006, at which point the ACLU filed an appeal in the Ninth Circuit. There, a three-judge panel took the Supreme Court’s reasoning in Lawrence v Texas into account in revising the ground rules for evaluating Don’t Ask Don’t Tell. Instead of deferring to Congress and the military, the Ninth Circuit ruled that any intrusion into the private lives of servicemembers must be directly linked to an “important government interest.”

In a crucial, but underreported detail, the incoming Obama administration declined to appeal this key ruling to the U.S. Supreme Court. As such, the “Witt standard,” as it is called, became binding law in the western states controlled by the Ninth Circuit. Indeed, we have Witt and the Ninth Circuit to thank for the Sept. 9 decision out of Southern California, where U.S. District Court Judge Virginia Phillips ruled that Don’t Ask Don’t Tell was flatly unconstitutional. More on the status of that case in a minute.

After establishing the Witt standard in late 2008, the Ninth Circuit sent the case back to Judge Leighton’s courtroom for a trial on the merits. Judge Leighton’s decision marks the first time a federal court has reinstated a fired service member in the history of Don’t Ask Don’t Tell.

Leighton’s ruling affects only one person, Margaret Witt. By contrast, Judge Phillips’ opinion earlier this month came in a constitutional challenge to the law itself brought by the Log Cabin Club. Judge Phillips, who is controlled by Ninth Circuit jurisprudence, used the Witt standard to strike Don’t Ask as a violation of due process and free speech.

Judge Phillips then asked the Log Cabin Club to propose language for a permanent injunction against enforcement of Don’t Ask, obviously giving the government an opportunity to weigh in as well. Basically, our side wants Don’t Ask struck throughout the country for everyone, while the Justice Department wants the ruling to apply to Log Cabin Club members with blue eyes who live in Riverside

One thing I can tell you, it is not at all clear whether an individual judge can singlehandly dismantle a federal statute, particularly when other federal courts have ruled differently. It’s probably going to be a moot point because the Justice Department is probably going to appeal Judge Phillips to the Ninth Circuit.

After all, it doesn’t look as if Don’t Ask Don’t Tell is going anywhere soon after what we saw on the Senate floor last week. Even if the Senate were to repeal the law during the lame duck session, the language of the repeal amendment leaves the future of the military ban in the hands of the administration, which has pledged to complete various absurd surveys and research reports before taking action. By my calculation, Obama cannot afford to leave military policy in legal limbo for six months or more, and he does not seem inclined to suspend enforcement by executive order in the meantime.

[Insert your very own Obama bashing paragraph here. I’m too tired of doing it myself.]

Suicide Is Not Painless
I just did a short radio news spot on Asher Brown, a Houston-area kid who shot himself in the head after years of being bullied on account of his size and personality. Basically, he was tormented because he was gay, although I suspect a small heterosexual boy or a girl who seemed different or vulnerable could have encountered the same harassment. 

Plus, Brown was 13 when he killed himself last Thursday. He had been bullied at his current middle school for a year and half, and this was after his parents moved to escape the threats at his previous school. Add it up, and he had been a victim of his thuggish peers since the age of nine or ten.
Yes, it’s gay baiting. But it’s more than that. It’s a violent and abusive pattern in schools that goes unchecked by adults in every context. “Boys will be boys” may have made pretend sense in the make-believe days of Ozzie and Harriet, but these boys aren’t boyish. They are barbaric. 

This is happening with regularity.  On Sept. 9, 15-year-old Billy Lucas hung himself in Greensburg, Indiana after suffering taunts and aggression since he was ten. The following week, Seth Walsh of Tehachapi, California, also hung himself. Walsh, who was 13, spent two weeks in the hospital before dying last Tuesday. Then there’s the Minnesota school district that has seen three gay teens take their own lives within the last year. 

Recently, Focus on the Family announced that safe schools laws were not really about bullying, but a disguised attempt to insinuate the gay agenda into the public education system. Perhaps the Christian Right believes that a little healthy shoving, tripping, taunting and name-calling is just what boys and girls need to keep them on the straight and narrow.

I’m not sure what effect laws have on the underlying social dysfunction that has infused a vein of evil into the once sweet demographic of preteen children. But here’s where they can help. In most of these cases, school authorities claimed they had no notion that anything untoward was going on. Whether or not that’s true, school authorities should be forced to protect these students under a far tougher legal standard.

Sexual harassment in the workplace is closely monitored by corporate functionaries, who live in fear of Title VII lawsuits. Peer harassment in public schools should be no less stringently punished under Title IX, which should be interpreted to cover all sex-based harassment in the public education system. True, unlike corporations, schools cannot be responsible for all the behaviors of teen or preteen students under their wing. But they can be held responsible for unchecked patterns of behavior, and they can be ordered by law to put in place strict policies that do not tolerate peer abuse once the nasty business comes to light. 

If memory serves, the U.S. Supreme Court has looked to Title IX in a peer harassment case that involved a girl who was repeatedly confronted by a boy in her class, holding the school at fault for ignoring an ongoing scenario of abuse. 

Yes, here it is, the 1999 Supreme Court case of Davis v Monroe County Board of Education. LaShonda Davis, a fifth grader at the time, was persecuted by a boy in her class. This was not a matter of pigtails in the inkwell; the boy was eventually charged with sexual battery by local prosecutors. Most importantly, the school took no action despite repeated complaints by LaShonda and her family.

In its ruling, the High Court wrote that peer harassment must be severe, and that the school district must be aware of the situation and respond with “deliberate indifference” in order for the offense to be actionable under Title IX. Further, Title IX only covers public schools receiving federal funds, and harassment must take place in the course of school activities in order for the law to be enforced. 

Still, the Davis precedent should in theory cover any pernicious gender-based aggression that goes unchecked by authorities who see the situation and just don’t care. And gay bashing should be considered gender-based, much as many courts interpret Title VII’s workplace protections to cover harassment based on gay sexual stereotypes even though “sexual orientation” is not specifically mentioned in that statute.

We have to get tougher on all fronts. We need local and state laws that target bullies. We need a specific federal law. And/or we need courts to enforce Title IX against public schools that ignore ongoing harassment based on gender stereotypes. Look, sexual orientation should be protected as a category in various federal laws, and for the moment it’s not. But do you really think Asher Brown was targeted at age nine or ten because of his “sexual orientation”? No. He was effeminate (I’m guessing). He was smaller than average. He broke gender stereotypes. These types of motives fall under the category of “sex” discrimination, and they are indeed covered by federal law. 

Finally, Seattle-based columnist Dan Savage and his husband Terry have started a YouTube channel aimed at gay kids called “it gets better.” The clips feature adult gay men and women describing their own school nightmares and urging bullied youth to tough it out and have faith in their futures.

Long Day’s Journey Into Night
Man, this has been a serious column, has it not? There’s a whole lot of new dirt on the Atlanta megachurch pastor – oh, sorry, “bishop” - who apparently had the habit of taking teenaged boys under his wing and coercing them into sex. Two more young men have come forward with the same story, which brings Bishop Eddie Long’s head count to four and counting. One of the men, Jamal Parris, told a television host about getting caught up in Long’s web six years ago when he was 17.

“I cannot get the sound of his voice out of my head, and I cannot forget the smell of his cologne, and I cannot forget the way he made me cry when I drove in his car on the way home, not able to take enough showers to get the smell of that man off my body.” Later in the interview, Parris called Long a “monster.”

On Sunday, Long gave a passionate sermon in his defense, which I haven’t had the stomach to research in detail. Oh, and needless to say, the man’s very big on traditional marriage and curing gays. 

By the way, I didn’t mean to imply that the diddling preacher man is not a “serious” news story. It sounds like it was pretty serious to Jamal Parris and Long’s other victims.

Midwest Roundup
On the lighter side, I was just reading about a baker in Indianapolis who refused to make rainbow cupcakes for a gay event because he was a Christian and didn’t want his little daughters exposed to, um, the depravity implicit in a multicolored cupcake?

I gather that city officials are looking into the incident at “Just Cookies,” because the bakery is located in a city-owned complex called City Market. According to Shewired, some students at Purdue were making arrangements for a Coming Out Day celebration, and it seemed they wanted cupcakes with rainbow icing. 

But their order was rejected by co-owner David Stockton, who told a Fox television reporter: “I explained we’re a family-run business, we have two young, impressionable daughters and we thought maybe it was best not to do that,…We have our values, and you know, some things ... for instance, if someone wants a cookie with an obscenity, well, we’re not going to do that.”

“Daddy says that rainbows are ugly and wrong,” Bitsy Stockton chimed in. “If you eat a rainbow, you’ll get sick and die.” Bitsy’s older sister Tammy believes the colors indigo and orange are particularly loathsome. “I spit them out real fast,” she whispered to the Fox interviewer. 

You know, every now and then I write an upbeat paragraph about how times are changing and society is evolving and then I run into a guy like David Stockton, who really did make that statement about values and obscene cookies. 

Ah well. I see there’s no time to report on the lunatic assistant attorney general in Michigan who has gone on a personal crusade against the gay student body president at the University of Michigan. 

You must understand that this public official is targeting the student on his own time, and not in his professional capacity. Asst. AG Andrew Shervill has created a blog called “Chris Armstrong Watch,” in which he accuses the aforementioned student of being a “privileged pervert” with a “radical homosexual agenda” who aims to influence other students to become gay. Armstrong, writes the unhinged lawyer, is “Satan’s representative on the student assembly.”

Even Attorney General Mike Cox, who believe me is no friend to the gay community, is nonplussed. Shervill is entitled to his personal opinions, said Cox recently, “but his immaturity and lack of judgment outside the office are clear.” 

Hey. Looks like I had time to write about the lunatic assistant attorney general after all! Yay! 

-arostow@aol.com