As Congress this week considers language for the 2011 defense appropriation bill that would effectively repeal the “Don’t Ask, Don’t Tell” policy, two current lawsuits frame the reality of what this matter is and is not about. One is that of Air Force Major Margaret Witt, who lived discreetly with a same-sex partner while serving as a flight nurse. In 2003, her lesbian partnership was brought to the attention of her command; in 2004, two years short of eligibility for military retirement, she was dismissed from the service.

She brought suit against the Air Force in 2006. The Ninth Circuit Court of Appeals ruled on her case in 2008, issuing an opinion that has so far received little media attention. The ruling’s Solomonic proposition is that, while the 1993 law passed by Congress is the law of the land, the military’s application of it requires a demonstration of more than mere homosexual practice on the part of a servicemember. To justify dismissal, according to the Ninth Circuit, the military must show that in an individual case, homosexual behavior creates a problem for unit cohesion or military discipline. (As commentators point out, this ruling, among its other oddities, has effect for the U.S. military only in the Western states overseen by the Ninth Circuit Court.)

The Obama administration declined to appeal that verdict in 2009. And I believe most servicemembers would regret Major Witt’s dismissal anyway. Nothing about her case suggests she had a deleterious impact on cohesion or discipline. She was a highly decorated and, by all accounts, highly professional and well-liked flight nurse. Dismissing airmen like Margaret Witt is not what Don’t Ask, Don’t Tell (DADT) is “about.”

But the Ninth Circuit ruling makes very clear what repealing DADT will be “about,” and that is judicial inquiry into the institutional reasoning behind military policy and decisions. The Ninth Circuit ruling requires something the federal law itself does not: a demonstration of damage to unit cohesion or discipline. The law assumes the potential for such damage, and is preemptive in intent. The appeals court ruling effectively rejects that premise. Its approach to the Witt case makes clear that it will choose, at its discretion, to disregard the intent of law and focus instead on individual circumstances, and even on forms of evidence for which there may be no legal definition (e.g., “damage to military unit cohesion”).

This is a useful perspective from which to address the other lawsuit I mentioned. Although unrelated to the military, at least at present, it’s a suit about government facilities and “discrimination” against gays by a religious group. As laid out by retired federal judge Michael McConnell, in an interview here, Christian Legal Society v. Martinez is about a state university law school (Berkeley’s Hastings School) not allowing a student organization to operate on campus because it affirms traditional marriage. The basis for the school’s defense is that letting private organizations use its facilities amounts to subsidizing them at taxpayer expense.

 The school has assumed, in effect, the position that its student organizations must design their purposes and beliefs in such a way that no one could be excluded from membership because of disagreeing with them. A Washington Post editorial from April, when the case’s appeal was argued before the Supreme Court, detected the obvious flaw in that reasoning, as did the questioner in a much-cited interview of Hastings’s Dean Leo Martinez (linked at the McConnell interview). By the school’s reasoning, Jews could not have a group on campus that did not admit radical Islamists, nor could blacks have a group that did not admit white-supremacist skinheads.

We may hope that the Supreme Court rules in favor of the plaintiff this summer. But the central thesis of the defense – that religious association and speech have to be restricted on government facilities to avoid subsidizing “discrimination” – may or may not be ruled on explicitly. It will depend on what the justices view as the basic question of law in this case. If the Supreme Court upholds the Ninth Circuit’s ruling for the defense, however, Judge McConnell affirms without hesitation that the ruling would have broad implications for religion and government, including the military chaplaincy and servicemembers’ religious groups. The collision of religious freedom with anti-discrimination policy in the precincts of government is not inevitable, but it is closer today than ever before.

Fair-minded people of goodwill have insisted that institutional endorsement of homosexuality by the military – the outcome repealing DADT will produce – isn’t going to infringe on the religious freedom of others. But CLS v. Martinez makes it clear that there are decision-makers willing to prohibit religious association and speech on government facilities, for precisely the reasons that would be adduced in the military’s case. Of perhaps more importance, there are multiple levels of judicial appeal, in at least some federal jurisdictions, where such prohibitions have lately been upheld.

Just as Major Margaret Witt tugs at our consciences as a victim of DADT, so should soldiers who rely on the ministry of their faith while in uniform. Tim Dalrymple, who interviewed Michael McConnell for “patheos,” has another recent interview with Michael Yon on the topic of soldiers and their religious faith. Yon’s own words make the case eloquently, and I urge you to read the interview and make up your own mind. My military experience validates his statements in every particular.

The Yon interview reminded me, moreover, of a remarkably moving document Ronald Reagan read to a Baptist convention in 1984. It was the report of a U.S. Sixth Fleet chaplain, Rabbi (Lieutenant Commander) Arnold Resnicoff, who along with his Catholic counterpart was one of the first men on the scene after the 1983 bombing of the Marine barracks in Beirut. The whole report is gripping, but this brief passage in particular has remained with me:

I remember the first time I jumped in a foxhole, the first time the shells actually fell within the U.S. area. Looking around at the others in there with me, I made the remark that we probably had the only interfaith foxholes in Beirut. The Druze, the Muslims, Christians, all had theirs. The Jewish forces in the Israeli Army had theirs. But we were together. I made the comment then that perhaps if the world had more interfaith foxholes, there might be less of a need for foxholes altogether.

How perfectly that observation captures the blessing of American tolerance: unity from respecting multiple faiths, not from delegitimizing one or more of them. I could willingly occupy a foxhole with Margaret Witt, and I bet she would have no objection to occupying one with me, in spite of my faith. We, and most others in uniform, can do much better than the letter of the law in that regard. Indeed, law that litigates religious belief, and policy that takes an attitude on it, cannot unite us in foxholes.

Law that seeks to make windows into our souls is a divider, not a uniter. A DADT policy that gave the military more institutional discretion to keep people like Margaret Witt in uniform, but that did not open the door to a whole new category for litigating not just personnel management decisions but religious beliefs, would be ideal. Unfortunately, because of the state of federal law and grievance politics today, repealing DADT will open that door. And in the end, the defensive policies to which repeal drives the military will leave commanders with less discretion than they have today. A military of political litmus tests, in which commanders are always looking over their shoulders for fear of hostile and suspicious legal review, will not be a military that functions as America needs it to.

Cross-posted at The Optimistic Conservative.

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