Ruling is 2nd this month declaring ‘don’t ask don’t tell’ unconstitutional
GENE JOHNSON | Associated Press
TACOMA, Wash. — A federal judge ruled Friday, Sept. 24 that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.
The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but Leighton is now the second federal judge this month to deem the policy unconstitutional.
Maj. Margaret Witt was suspended in 2004 and subsequently discharged under the “don’t ask, don’t tell” policy after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.
Leighton hailed her as a “central figure in a long-term, highly charged civil rights movement.” Tears streaked down Witt’s cheeks and she hugged her parents, her partner and supporters following the ruling.
“Today you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon the political branches of government,” the judge told her, choking up as he recalled Witt’s dramatic testimony about her struggles.
The ruling was the second legal victory this month for opponents of “don’t ask, don’t tell,” and it throws the law into further disarray.
Barring an appeal, Witt will now be able to serve despite being openly gay, and a federal judge in California earlier this month ruled the law unconstitutional and is considering whether to immediately halt the ban. While such an injunction would prevent openly gay service members from being discharged going forward, it wouldn’t do anything for those who have already been dismissed.
Witt’s attorneys, led by the American Civil Liberties Union of Washington, say her case now provides a template for gays who have been previously discharged to seek reinstatement.
Gay rights advocates say that if the government must justify each firing under “don’t ask,” it will mean a slow death for the policy — even if an outright repeal isn’t endorsed by Congress or the courts.
The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered engaging in homosexual activity.
The Justice Department did not immediately comment on the ruling, but James Lobsenz, Witt’s attorney, said he expected an appeal.
In 2006, Leighton rejected Witt’s claims that the Air Force violated her rights, following precedent that the military’s policy on gays is constitutional. An appeals court panel overruled him two years later, holding that in light of a Supreme Court ruling striking down a Texas ban on sodomy, “don’t ask, don’t tell” intrudes on the rights of gay service members. For the government to discharge gays it must prove that their firings further military goals, the panel said.
Leighton determined after a six-day trial that Witt’s discharge advanced no legitimate military interest. To the contrary, her dismissal hurt morale in her unit and weakened the squadron’s ability to carry out its mission, he ruled.
“There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds,” Leighton ruled.
Leighton became emotional as he recalled Witt’s testimony about the support she has received from her parents since she came out to them on the eve of filing her lawsuit.
“The best thing to come out of all this tumult is still that love and support,” he said.
A crowd of spectators remained quiet until the judge left the courtroom, when it erupted in cheers.
“I’m just so thrilled I have the chance to do what I wanted to do all along: that’s return to my unit,” Witt said.
She also said that she appreciated the judge’s recognition of the many gays who continue to quietly serve in the military.