By Staff Reports

9th Circuit Court of Appeals says military must meet ‘heightened standard’ in  justifying discharges of LGBT servicemembers

In a decision handed down Wednesday, May 21, the U.S. Court of Appeals for the Ninth Circuit reinstated a lawsuit challenging the dismissal of a decorated U.S. Air Force flight nurse who was kicked out of the military for being a lesbian.

Maj. Margaret Witt, who is being represented in court by the A.C.L.U., had appealed a lower court ruling that rejected the suit in July 2006. The 9th Circuit Court remanded the case to district court in Tacoma.

According to a statement released Thursday, May 22, by the Servicemembers Legal Defense Network, the ruling marked the first time a federal appellate court found that the military must meet a "heightened scrutiny" standard when dismissing a servicemember for homosexual conduct.

The "heightened scrutiny" standard means that the Air Force must prove that discharging Witt is necessary for purposes of military readiness, instead of just relying on the "Don’t ask, don’t tell" policy as the reason for dismissal, according to the A.C.L.U.

The ruling leaves DADT in place, but the court found that before discharging a soldier, the military must prove that the individual’s conduct actually hurt morale or jeopardized another government interest, A.C.L.U. officials said.

The majority opinion, written by Justice Ronald M. Gould, cited the U.S. Supreme Court’s ruling in Lawrence v. Texas, the landmark 2003 case that struck down the Texas sodomy law.

Gould wrote: "We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas], the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest."

The court emphasized that generalized or hypothetical assertions about the impact of gay and lesbian service members would not be sufficient, according to the A.C.L.U.’s statement.

And as the case goes forward, the trial court "must determine not whether [the policy requiring discharge of gay and lesbian service members] has some hypothetical, post hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt," the ruling said.

Witt said Wednesday that she is "thrilled by the court’s recognition that I can’t be discharged without proving that I was harmful to morale.

"I want to serve my country. I have loved being in the military; my fellow airmen have been my family. I am proud of my career and want to continue doing my job," Witt said in a written statement. "Wounded people never asked me about my sexual orientation. They were just glad to see me there."

Witt graduated from Pacific Lutheran University in 1986 and has been serving as a flight nurse and operating room nurse assigned to McChord Air Force Base near Tacoma. During her 19 years in the Air Force, she has served in the Persian Gulf and has received numerous medals and commendations as well as top evaluations. She was chosen as the "poster child" for the Air Force Nurse Corps recruitment flyer in 1993.

Witt served in Oman during Operation Enduring Freedom and received a medal from President Bush, who noted that she had delivered "outstanding medical care" to injured service members and that her "outstanding aerial accomplishments … reflect great credit upon herself and the United States Air Force." In 2003, she received another medal for saving the life of a Defense Department employee who collapsed aboard a government-chartered flight from Bahrain.

Witt was in a relationship with a civilian woman from 1997 to 2003. She was notified in the summer of 2004 that the Air Force had begun an investigation into an allegation that she had engaged in homosexual conduct. She was placed on unpaid leave in November 2004 and told she could no longer participate in any military duties, pending formal separation proceedings.

Air Force officials told her in March 2006 that she was being administratively discharged on grounds of homosexual conduct.

This article appeared in the Dallas Voice print edition May 23, 2008.

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