Highly decorated flight nurse’s case is one of two challenging “‘Don’t ask, don’t tell’; arguments focus on Texas’ overturned sodomy law
SEATTLE A lawyer for a highly decorated military flight nurse who was fired for being gay asked a federal appeals court panel Monday, Nov. 5, to reinstate her lawsuit against the Air Force, saying her discharge violated her right to be free from governmental intrusion in her private life.
Maj. Margaret Witt, 42, was suspended in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. She was honorably discharged last month, after having put in 18 years two short of what she needed to receive retirement benefits.
Attorney James Lobsenz asked the three judges from the 9th U.S. Circuit Court of Appeals to invalidate the 1994 “Don’t ask, don’t tell” policy or, at least, reinstate Witt’s lawsuit. “Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.
Lobsenz argued that the Supreme Court’s 2003 ruling striking down anti-sodomy laws in Texas recognized a “fundamental right” of consenting adults to be free from governmental intrusion into their bedrooms. The relationship was with a civilian woman and took place in
their home in Spokane, hundreds of miles from McChord Air Force Base, Witt’s duty station in Western Washington.
“At all times she kept her sexual life private,” Lobsenz said.
He also noted that even heterosexual child molesters are allowed to prove, on a case-by-case basis, that they should not be discharged, but gays who engage in homosexual conduct are automatically excluded.
Monday’s arguments centered on the ruling in the Lawrence v. Texas case, and whether it in fact established a “fundamental right,” which would require a higher burden for the government to show that “Don’t ask, don’t tell” is constitutional.
Jonathan F. Cohn, a deputy assistant attorney general with the Department of Justice, acknowledged that the Texas case is not “a pinnacle of clarity,” but said the justices know full well the significance of the phrase “fundamental right” and didn’t use it in their ruling: “The court very clearly stops short of … recognizing a fundamental right.”
And if there’s no fundamental right, Cohn said, the court should defer to the government’s argument supporting “Don’t ask, don’t tell”: that having gays in the armed forces could be disruptive.
Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. As a nurse, she cared for injured patients on military flights.
She was promoted to major in 1999, and she deployed to Oman in 2003 in support of the U.S. invasion of Afghanistan. A citation from President Bush that year said, “Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions.”
Her suspension the next year came during a shortage of flight nurses and outraged many of her colleagues, one of whom, a sergeant, retired in protest, saying he no longer wished to be part of the military.
The two Air Force officers who met with Witt in 2004 to tell her she was being fired, Col. Jan Moore and Maj. Verna Madison, said they were terribly upset about it.
Witt, who is backed by the American Civil Liberties Union, attended Monday’s arguments wearing her uniform. She declined to speak with reporters.
Her lawsuit is one of two that have been argued this year in federal appeals courts challenging the “Don’t ask, don’t tell” policy.
The other case was argued in Boston in March. Twelve gay and lesbian veterans who were dismissed under “Don’t ask, don’t tell” asked a federal appeals court to reinstate their lawsuit.
This article appeared in the Dallas Voice print edition November 9, 2007