Intellectual Property Law

The case was brought by Maj. Margaret Witt, a flight nurse who served in the Air Force for two decades, received several medals and was featured in the service?s promotional materials.

Major Witt also shared a life with a woman not affiliated with the military for six years in Spokane, Wash., about 250 miles from the base to which she was assigned. The women kept their relationship private, and the decision did not say how the Air Force found out about it.

One of Major Witt?s lawyers described what happened. ?Some citizen in Spokane,? the lawyer, James E. Lobsenz, said, ?called up and said there are these lesbian women living in a house here and one of them is in the Air Force and you should know that.?

Following an investigation and military hearing, Major Witt was discharged.

Major Witt filed a lawsuit challenging the ?don?t ask, don?t tell? policy as a violation of the Constitution?s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt?s suit and returning the case to Judge Leighton for further proceedings.

The decision was notable for the standard the appeals court instructed Judge Leighton to use in considering the case. The panel said judges considering cases claiming government intrusion into the private lives of gay men and lesbians must require the government to meet a heightened standard of scrutiny.

The usual standard is called ?rational basis? review, which merely requires the government to offer a rational reason for a law or policy. The rationale offered by Congress for the ?don?t ask, don?t tell? policy is that openly gay and lesbian service members threaten morale, discipline and unit cohesion. Several courts have sustained the policy as rational.

On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt?s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff?s private life significantly advanced the interest.