Air Force told to re­in­state les­bian

Judge or­ders U.S. to re­in­state of­fi­cer and says blan­ket dis­missals of gays are il­le­gal.

Los Angeles Times - - Front Page - Carol J. Wil­liams

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

Gays,

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.

Stephen Bras­hear

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.

Ted S. War­ren

NURSE: Mar­garet Witt’s ca­reer showed mil­i­tary was un­harmed by her sex­ual ori­en­ta­tion, judge said.

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