Talk:Witt v. Department of the Air Force

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Discussion relocated from my talk page[edit]

Witt[edit]

I believe your latest edit leaves this entry saying that the Witt standard = "there must be an "important" governmental interest at issue, that DADT must "significantly" further the governmental interest, and that there can be no other way for the government to advance that interest." But if you check the editorial source cited, you will find this:

This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.

It will be the first judicial application of the so-called “Witt standard” established by the 9th U.S. Circuit Court of Appeals.

Many other sources (blogs and therefore not properly citable) also refer to the Witt standard and make it clear that it is not the same thing as a level of scrutiny. I haven't been able to check the Maddow citation because I just can't find the segment in question.

Bmclaughlin9 (talk) 22:46, 14 September 2010 (UTC)[reply]

The specific holding of the decision is that the Air Force has to "advance and important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve the government's interest." (p. 20) The court goes on to say "it is clear that the government advances an important government interest." (p. 23) The question before the trial court is not whether her homosexuality is harmful to unit cohesion but whether excluding her under DADT significantly furthers the government's ability to advance its interest in maintaining unit cohesion and if so whether there is no other less intrusive way for the government to advance its interest in maintaining unit cohesion. Honestly I would prefer that references to any so-called "Witt standard" be excised unless the term should come into prominent usage within the legal profession in the way that Lemon test or Undue burden standard or Miller test has. I don't think the information adds anything of value to the article and obviously it causes confusion. I suggest rather than screwing around with it now that we just go back to how it was and omit the information. Are You The Cow Of Pain? (talk) 23:14, 14 September 2010 (UTC)[reply]

This isn't about the holding. The term is being used in the news media's discussion of the case and solely in relation to DADT cases. I didn't add the sentence about the "Witt standard" and don't particularly care if it stays or goes. But if it stays, then what the article says should reflect how the term is actually being used. Even then it doesn't belong in the "Ninth Circuit ruling" section. Bmclaughlin9 (talk) 23:37, 14 September 2010 (UTC)[reply]

I just think it's overall too muddying of the waters to try to include it. The editorial source is factually wrong as to the question at stake but I as an editor can't explain why it's wrong in the article because that would constitute original research. So our choices are to knowingly present inaccurate information with no room within WP policy to post the correct information or to remove reference to the "Witt standard" altogether. My inclination is to remove it. Are You The Cow Of Pain? (talk) 23:53, 14 September 2010 (UTC)[reply]

Removed. Bmclaughlin9 (talk) 02:34, 15 September 2010 (UTC)[reply]

I added it, and I agree with its removal, for now at least. The term is being used vaguely by reporters who know little about constitutional law and do not really know what the Ninth Court holding means. I also created a redirect but I think I'll leave it because at least it has the effect of directing any interested party to this article. --TS 04:16, 15 September 2010 (UTC)[reply]

The redirect is fine; if media outlets are using it (as they might in connection with coverage of LCR v. US) it becomes a reasonable search term. Are You The Cow Of Pain? (talk) 21:09, 15 September 2010 (UTC)[reply]

Fuel for thought. The decision in Log Cabin Republicans v. United States of America uses the phrase "Witt standard." decision]

The Witt court held that to justify the infringement on the fundamental rights identified in Lawrence, a defendant must satisfy both the requirement that the Act "significantly furthers" the Government's interests and the requirement that it is "necessary" to achieve them. (p. 65)

Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don't Ask, Don't Tell Policy "significantly furthers" the Government's interests nor that it is "necessary" in order to achieve those goals. (p. 72)

It appears that this court believes there is something called the Witt standard, which requires the government to meet 2 tests. Elsewhere the decision refers to the prongs of the Witt standard, the 2 prongs being "significantly furthers" and "necessary", all of which is premised -- I think -- on the idea that this is a test imposed on the government only and in DADT cases only. Bmclaughlin9 (talk) 02:57, 17 September 2010 (UTC)[reply]

The wording of the Ninth Circuit decision clearly articulates a three-prong test, the first prong being that the government advance an important governmental interest. The Ninth Circuit ruled that the government did advance such an interest so there is no need for the court in LCR to address it. I don't see anything in any of the decisions in either case that limits its analysis to DADT cases. I still think at this point the differing meanings being assigned to the term indicate that leaving it out is still for the best. Are You The Cow Of Pain? (talk) 03:31, 17 September 2010 (UTC)[reply]

Update - Judge orders lesbian reinstated to Air Force[edit]

Johnson, Gene (Associated Press) (September 24, 2010). "Judge orders lesbian reinstated to Air Force - Case challenges 'Don't ask, don't tell' policy". MSNBC. www.msnbc.msn.com. Retrieved 2010-09-24.

Updated article. Cheers, -- Cirt (talk) 21:31, 24 September 2010 (UTC)[reply]

"Heightened scrutiny" versus "intermediate scrutiny"?[edit]

The article uses both the terms "heightened scrutiny" and "intermediate scrutiny". These seem to be synonyms; are they? If they are, we should use the most widely-accepted term. If they aren't, we should be clear about the difference. -- Dan Griscom (talk) 11:01, 25 September 2010 (UTC)[reply]