Homophobia: A Losing Trial Strategy

Homophobia is a poor trial strategy. For the second time recently a GLBT rights case has gone all the way to a bench trial — one where the judge finds the facts and there is no jury — and the homophobes lost.

Major Witt’s case went to trial under a legal standard her own case set. The case went up on appeal once, and the Circuit created a legal standard for when a DADT discharge was constitutionally permissible: the Witt standard. As appellate courts often do, the Court said effectively, “we don’t decide the facts; we’ve said what the law is, now the District Court has to go apply the facts to the standard we just set.”

On remand (which is what we call the trip back down), The District Court held a full trial, and made its decision. Major Witt, a highly trained flight surgeon, must be allowed to return to service.

I may have more to say once I’ve had a chance to read the decision.

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