Judge orders lesbian reinstated to Air Force

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.

—  John Wright

Former colleagues testify for lesbian flight nurse discharged from Air Force under DADT

GENE JOHNSON | Associated Press

TACOMA, Washington — A lesbian flight nurse discharged from the Air Force under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday, Sept. 13.

Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.

“It was a rather dishonorable act on the part of the Air Force,” Schaffer said. “It should not be about what you are, but who you are.”

Witt’s case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt’s dismissal met that standard.

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 to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Phillips’ ruling has no effect on the legal issues in Witt’s case, gay rights activists believe a victory — and Witt’s reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.

Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt’s sexuality. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.

Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

Former colleagues who testified Monday disagreed that Witt’s firing accomplished anything — especially because it came during a shortage of flight nurses.

“We were at war at the time,” said Lt. Col. Vincent Oda. “It was the loss of an able flight nurse is what that was.”

The court also heard from other service members discharged under “don’t ask, don’t tell.” One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn’t want to hide anything.

The result of that initial inquiry? “No evidence” of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.

One of Witt’s lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.

Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.

Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.

Her suspension came less than a year before she would have earned her full pension.

—  John Wright

Lesbian seeks reinstatement to Air Force; DADT opponents hope for another big legal victory

GENE JOHNSON | Associated Press

SEATTLE — Opponents of the “don’t ask, don’t tell” policy against gays serving in the military were hoping for another major legal victory as a federal trial began Monday, Sept. 13 over whether to reinstate a lesbian flight nurse discharged from the Air Force Reserve.

The trial comes just days after a federal judge in California declared “don’t ask, don’t tell” an unconstitutional violation of the due process and free speech rights of gays and lesbians. While the ruling does not affect the legal issues in the case of former Maj. Margaret Witt, gay rights activists believe a victory — and her reinstatement — could help build momentum for repealing the policy.

“There’s already political momentum to do something to repeal this unfair statute,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles who is on Witt’s legal team. “Judicial opinions from multiple jurisdictions saying there’s a constitutional problem with this ought to encourage Congress to act more swiftly.”

Witt was a member of a squadron based at McChord Air Force Base near Tacoma when she was suspended in 2004 and honorably discharged. She challenged the constitutionality of her dismissal, and a federal appeals court panel ruled in 2008 that the military could not discharge service members for being gay unless it proved that the firing furthered military readiness.

The case was sent back to U.S. District Court in Tacoma for Judge Robert Leighton to determine whether Witt’s firing met that standard. Several of Witt’s former colleagues are expected to testify that she was an excellent nurse, and it was her dismissal — not her sexual orientation — that caused morale problems in the unit.

Justice Department lawyers representing the Air Force note that the case has put them in the position of defending a law neither the president nor the department itself believes is good policy. Defense Secretary Robert Gates also favors repealing the 1993 law, which 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 to be engaging in homosexual activity.

Government lawyers nevertheless insist Witt’s firing was justified — and that the panel of the 9th U.S. Circuit Court of Appeals did not know the extent of her conduct when it sided with her in 2008. That conduct included a long-term relationship with a civilian woman, an affair with a woman who was married at the time and two earlier relationships with fellow servicewomen, Witt acknowledged in a deposition in May.

It was a 2004 e-mail from the husband of the married woman to the Air Force chief of staff, Gen. John Jumper, that prompted the investigation into Witt’s sexuality.

Witt acknowledged the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

For those reasons, it says, Witt’s firing did further military goals, even if 19 current and former members of Witt’s unit have submitted declarations saying they had no problem serving with her.

“Those co-workers are not military commanders, and the military cannot operate by a unit referendum process in which disciplinary policies and outcomes are determined by the individual opinions of a few unit members,” Justice Department attorney Peter J. Phipps wrote in a court filing.

The Air Force also says Witt can’t be reinstated because she no longer meets Air Force nursing requirements, something Witt’s attorneys dispute.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say that it is the Air Force’s burden to prove that her reinstatement would be a detriment to unit cohesion. And, ACLU attorney Sarah Dunne says, the Air Force has provided no such evidence.

Gen. Charles E. Stenner Jr., an expert witness for the government, said in a deposition that he didn’t know if Witt’s reinstatement would negatively affect military functions, and the current commander of Witt’s unit, Col. Janette Moore-Harbert, acknowledged having no evidence to that effect.

The trial is expected to last seven days. Meanwhile, the Senate could take up a defense bill passed by the House that includes a provision to end “don’t ask, don’t tell.”

—  John Wright