Judge Orders Lesbian Discharged Under DADT Reinstated

Jim Burroway

September 24th, 2010

Major Margaret WittU.S. District Judge Ronald Leighton has ordered Air Force Reserve Major Margaret Witt reinstated as the result of her lawsuit challenging her dismissal under “Don’t Ask, Don’t Tell. Judge Leighton wrote:

The application of “Dont’s Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.

Major Witt, who had been in a committed six year relationship with a woman whose home she shared in Spokane, Washington, testified that she had never disclosed her sexual orientation to her colleagues and she never engaged in prohibited behavior while on duty or on military grounds. The Air Force learned of Witt’s sexuality when Witt’s partner’s ex-husband informed Air Force officials. The judge noted Witt’s exemplary performance in her unit and found that there was no evidence that her presence had any affect on unit cohesiveness or effectiveness:

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. To the contrary, the actions taken against Major Witt had the opposite effect. The 446th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women. … These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds.

Witt’s first legal attempt to challenge her discharge resulted in a court loss in 2006. But in 2008, the Ninth Circuit Court of Appeals ruled that the military can’t discharge gay servicemembers without proof that the discharge would further military goals.

This ruling represents yet another setback for “Don’t Ask, Dont Tell” in the courts. Earlier this month, another Federal Judge ruled the policy unconstitutional in a lawsuit brought by Log Cabin Republicans. Yesterday, the Justice Department asked the judge to limit the scope of that ruling to current LCR members only.

Which means that if the Justice Department’s request prevails in the LCR case, then there would be two legal exceptions carved out of DADT: current LCR members and Major Witt. For everyone else, the discharges will continue — unless everyone challenges their discharges in court. Is that really what it’s going to take to finally get rid of this sucker?

Jeremy

September 24th, 2010

Couldn’t Judge Phillips limit her injunction to all present AND future Log Cabin members? That would (barely) be in the “thresh hold” mentioned by the DOJ, but be amorphous enough to possibly include every LGB in service (they would have to join Log Cabin en masse to be under the injunction).

occono

September 24th, 2010

I’m pretty sure that there’d be some gay Democrat soldiers who’d object.

Noah

September 24th, 2010

I’m happy to see her get her job back, but I get the feeling that the Christian Conservatives will have a field day with this–especially considering that DADT repeal just got delayed.

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