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Judge rules military's 'don't ask, don't tell' policy violated constitutional rights of Air Force reserve nurse

September 24, 2010 |  3:34 pm

The U.S. military’s “don’t ask, don’t tell” policy on gays violated the constitutional rights of a decorated Air Force reserve flight nurse when it compelled her discharge, a federal judge in Washington state said Friday in ordering the military to reinstate Maj. Margaret Witt.

The order by U.S. District Judge Ronald B. Leighton in Tacoma applied only to Witt’s challenge of her 2006 discharge, but the judge noted in his ruling that decisions about whether homosexuality in the armed forces impeded legitimate military objectives had to be decided on a case-by-case basis, not a blanket policy.

Leighton cited Witt’s exemplary career and performance evaluations as evidence that the Air Force was unharmed by her sexual orientation and also noted reports from her former colleagues that it was her dismissal that proved disruptive of unit cohesion and morale.

“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.

“The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be,” he added.

Leighton observed at the conclusion of 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 military objectives.

Witt was stationed at McChord Air Force Base as a reservist flight nurse when she was notified in 2004 – one year short of the 20 years of service she needed to earn a full Air Force pension--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 in its ruling two years later.

During the trial in Leighton’s Tacoma courtroom, 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 from the base.

“Don’t ask, don’t tell” was also dealt a severe setback in a federal courtroom in Riverside 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 but asked the parties to submit arguments first.

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 that brought suit against the policy in U.S. district court.

“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 filing noted that the U.S. Supreme Court has made clear that the federal government “is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress.”

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 a case-by-case consideration of the potential consequences for military operations and readiness.

Obama administration officials have criticized “don’t ask, don’t tell” as discriminatory and likely unconstitutional. But they have defended the policy against legal challenges on 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 discharge of any soldier or sailor who acknowledges being gay.

--Carol J. Williams

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