Air Force told to reinstate lesbian
Judge orders U.S. to reinstate officer and says blanket dismissals of gays are illegal.
A judge says her discharge under “don’t ask, don’t tell” violated her rights.
The U.S. military violated the constitutional rights of a decorated Air Force Reserve flight nurse when it discharged her under the “don’t ask, don’t tell” ban on gays in the armed forces, a federal judge said Friday in ordering her reinstatement.
U.S. District Judge Ronald B. Leighton’s order applied only to Maj. Margaret Witt, but the judge in Tacoma, Wash., made it clear that a blanket policy of dismissing openly gay military personnel from the armed forces violated an appeals court holding that such action was justified only if it advanced important military objectives.
Leighton cited Witt’s exemplary career and performance evaluations as evidence that the Air Force was unharmed by her sexual orientation. In fact, he noted, former colleagues had testified that it was her dismissal that proved disruptive of the aeromedical unit’s mission, not her homosexuality.
“The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion,” Leighton said.
Witt and her attorneys heralded the ruling as a victory for the armed forces and the soldiers and sailors serving their country.
“Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaptation,” said Witt, adding that she looked forward to rejoining her unit at McChord Air Force Base near Tacoma. “Thousands of men and women who are gay and lesbian honorably
serve this country in our military.”
Wounded soldiers she was assigned to treat “never asked me about my sexual orientation. They were just glad to see me,” Witt said in a statement issued through the American Civil Liberties Union of Washington, which helped represent her.
“Today we heard the hammer of justice…. We look forward to the day when all members of our military can serve our country without invidious discrimination,” said Kathleen Taylor, executive director of the state ACLU.
Leighton observed at the conclusion of the trial on Witt’s lawsuit seeking reinstatement that he was bound by a 2008 ruling by the U.S. 9th Circuit Court of Appeals that said gays couldn’t be fired from the military unless their discharge was necessary to further important military objectives.
Witt was stationed at McChord as a reservist flight nurse when she was notified in 2004 — one year short of eligibility for retirement — that she was being suspended pending investigation for alleged homosexuality. Sixteen months later, she was notified of her pending discharge and filed a lawsuit seeking a court injunction. Leighton dismissed the 2006 suit, a decision overturned by the 9th Circuit and sent back to Leighton’s court for trial.
During the trial that concluded this week, Witt reiterated that she had never disclosed her sexual orientation to Air Force colleagues, nor had she ever engaged in homosexual relations on duty or on military grounds. She had been in a committed relationship for six years with a civilian woman with whom she shared a home in Spokane, Wash., 250 miles away from the base.
“Don’t ask, don’t tell” was also dealt a severe setback in a Riverside federal courtroom earlier this month when U.S. District Judge Virginia Phillips ruled the policy unconstitutional after a three-week bench trial. That challenge was brought by the Log Cabin Republicans, a gay rights group that includes current and former military personnel. Phillips signaled during the Sept. 9 ruling that she would issue a nationwide order to stop the discharge of gays.
That injunction had been expected Friday, but late filings by the Obama administration and response by the Log Cabin Republicans appear to have delayed Phillips’ decision.
On Thursday, Justice Department attorneys filed court documents urging Phillips to limit the scope of any injunction against enforcing “don’t ask, don’t tell” to cases involving the 19,000-member Log Cabin Republicans group.
“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” the government attorneys argued.
The government lawyers also pointed out that a ban on enforcement of the policy would be counter to the intentions of the 9th Circuit ruling in Witt’s case, which called for individual consideration of the potential consequences of discharging gay personnel.
A responding brief filed by lawyers for the gay rights group urged Phillips to quash “don’t ask, don’t tell” with a nationwide injunction on discharges of gays, reminding her that her authority to enjoin the military is not limited to the Central District of California or even the nine-state 9th Circuit.
Obama administration officials have criticized “don’t ask, don’t tell” as discriminatory and probably unconstitutional. But they have defended the policy against legal challenges on the grounds that it remains the law of the land unless and until it is repealed by Congress.
On Tuesday, Senate Republicans scuttled an attempt by Democrats to repeal the policy by filibustering the annual defense authorization bill because it contained a provision that would have ended the ban on gays serving openly in the armed forces.
The “don’t ask, don’t tell” policy, enacted in 1993, prohibits service personnel from inquiring about the sexual orientation of other members and requires the discharge of any soldier or sailor who acknowledges being gay.
CELEBRATING: Air Force Reserve Maj. Margaret Witt, center, hugs partner Laurie McChesney, left, on Friday. “Many people forget that the U.S. military is the most diverse workforce in the world,” Witt said.
NURSE: Margaret Witt’s career showed military was unharmed by her sexual orientation, judge said.