From The Spokeman-Review and Alliance Defense Fund:
StoryComments 09September 24, 2010 in News
Judge reinstates Witt in Air Force Reserve
Jim Camden The Spokesman-Review
TACOMA — Spokane resident Margaret Witt may be the best evidence that “Don’t Ask Don’t tell doesn’t work, a federal judge said today. U.S. District Judge Ronald Leighton, in a sometimes emotional ruling from the bench, said Witt can be reinstated in the Air Force Reserves despite the military’s ban on homosexuals serving openly in the military.
Leighton ruled that Witt’s rights were violated and that evidence presented during a six day trial showed her unit, the 446th Air Evacuation Squadron did not suffer any loss of cohesion or morale from her service or other known or suspected homosexuals among its ranks. On the contrary, morale dropped after she was suspended and later discharged for being a lesbian.
That overrides the general reasons set down by Congress and adopted by the military to keep openly gay members from serving, he said.
“She should be restored to her position as flight nurse . .. as soon as practical,” Leighton said, if that’s what she wants.After finishing his formal ruling, he looked at Witt and added “I hope you will request reinstatement with the Air Force Reserves and the 446th.
“Your will provide the best evidence that open service of gays and lesbians will have no adverse affect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
The packed courtroom broke into applause after Leighton left the bench, and Witt said later she would “absolutely” request reinstatement as soon as she completes the necessary hours of work as a nurse to meet standards for being a military flight nurse.
Witt would become the first military person discharged under the 1993 policy to be ordered returned to service by a federal judge, her attorney Sarah Dunne said. Another openly gay service member was reinstated before the policy was instituted and some openly gay soldiers have been allowed to remain with their Army units that are being called up to combat duty.
A decorated flight nurse, Witt was suspended in 2004 after being “outed” by her former partner and the husband of a co-worker with whom she was having an affair. The woman eventually left her husband and now lives with Witt.
She said she didn’t consider herself a lesbian when she joined the Air Force in 1987 after graduating from college with a nurse’s degree, and dated both men and women at that time. She did consider herself a lesbian in 1993, when Congress passed and the military enacted the “Don’t Ask, Don’t Tell” policy. But she understood the policy to mean that she couldn’t tell anyone about her sexual orientation, and the military couldn’t ask.
When she was interviewed by a military attorney in 2003, she said she was asked, but she didn’t reply. After her suspension, she filed suit to keep her job in the Air Force Reserves 446th Air Evacuation Squadron, and made public statements that she was a homosexual. A military panel turned down her appeal to return to service and gave her an honorable discharge.
Leighton originally dismissed the suit, saying that Congress has a “rational basis” to enact the policy after holding hearings and concluding it was in the best interest of military order, discipline and morale. But the 9th Circuit Court sent the case back, saying that whatever Congress may have decided for the military as a whole, Witt had a right to a trial on whether the policy, as applied to her contributes to that order, discipline and morale, or whether something other than discharge would achieve those goals.
Members of her unit testified at the trial that they knew or suspected Witt was a lesbian, but that didn’t matter to them. What mattered was that she was good at her job, so good that at one point she was in charge of making sure other members of the unit were up to the military’s exacting standards.
“It was Major Witt’s suspension and ultimate discharge that caused a loss of morale in the unit,” Leighton said. The 446th is a highly professional, well-trained unit that provides a vital service to troops around the world, he added.
“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 (squadron). There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds…Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.”
Federal attorneys had urged Leighton to look beyond the impact on the squadron and consider polls that show some military members feel that openly gay members will hurt military readiness and erode morale. That’s a possibility, he acknowledged, “just asi it was a possiblity during the integration of blacks, other minorities and women into the armed forces.”
But the fact that the Army allows openly gay members to go to war if their discharge process has not yet begun demonstrates that the Army has decided that “openly gay service is preferable to going to war without a member of a particular unit.”
The federal government noted during the trial that by having an affair with a married woman, Witt had violated military laws on committing adultery. But Witt was discharged for violating Don’t Ask, Don’t Tell, not for adultery, and was given an honorable discharge without any mention of that violation, Leighton said. He refused to speculate on what, if anything, the Air Force may have done on that particular point but he wouldn’t use an uncharged offense to uphold an otherwise unconstitutional discharge.
After delivering his ruling, Leighton told Witt she’s become a central figure in a “long-term and highly charged civil rights movement” and that would be stressful. But she said something during the trial that resonated with him, and he hoped she would remember in the time to come. It was that when she was forced to tell her parents she was a homosexual because she was filing the lawsuit that they provided “unfailing love and support” for her.
“Notwithstanding the victory you have attained here today, for yourself and for others, I would submit to you that the best thing to come out of all this tumults is still that love and support you receive from your family,” he said. “You are truly blessed.”
also, this related story, from The Washington Post:
White House assures skeptics on 'don't ask'
The White House assured gay rights groups on Thursday evening that the Justice Department's decision to object to immediately ending the military's ban on openly gay service members in no way diminishes President Obama's goal of ending the "don't ask, don't tell" law.
Government lawyers responded on Thursday to a federal judge's recent ruling that the gay ban is unconstitutional by saying she should not enforce that ruling with a military-wide injunction banning the discharge of gay and lesbian service members.
The filing "clearly shows why Congress must act to end this misguided policy," White House Press Secretary Robert Gibbs said in a statement.
Obama was disappointed by Tuesday's Senate vote that failed to allow for debate to begin on the annual Defense policy bill that includes a repeal of the ban, Gibbs said. Despite the vote, the Pentagon continues to study how to implement a potential repeal and the White House will work with Senate Democrats to end the law, he said.
"This announcement is disappointing, but no surprise," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group fighting to end the ban. "It underscores that we need the White House actively working repeal in the lame duck session, and making it a top priority."
But White House Deputy Chief of Staff Jim Messina assured students at his alma mater on Wednesday that the gay ban will be struck down soon.
"We're going to get that done this year," Messina said at the University of Montana, according to the Montana Kaimin campus newspaper.
Gay rights activists consider Messina's comments most critical since he brokered the deal in May that inserted repeal of DADT into the House and Senate versions of the Defense bill.
Despite Messina's assurances, the Human Rights Campaign -- a close partner of the Obama White House -- said Thursday that "the Justice Department has no obligation to defend a law that is wrong, discriminatory and not in the best national security interests of our country."
Make no mistake: Gay rights groups, and prominent gay Democrats are furious with Obama and his aides for not doing more to ensure this week's vote succeeded. They're tempering their frustrations now, but if the next round of Congressional votes fail, you should expect critics to speak up more forcefully.
And, lastly, from Reuters:
U.S. judge orders lesbian Air Force nurse reinstated
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By Laura Myers
TACOMA, Washington
Fri Sep 24, 2010 5:40pm EDT
TACOMA, Washington (Reuters) - A former U.S. Air Force flight nurse expelled from the military after revealing she is a lesbian was ordered reinstated by a federal judge on Friday in a closely watched court challenge to the military's "Don't Ask, Don't Tell" policy.
The American Civil Liberties Union, representing Major Margaret Witt in contesting her dismissal, has said that if returned to the service, she would be the first person to lawfully serve openly in the U.S. military as a homosexual.
"She should be reinstated at the earliest possible moment," U.S. District Judge Ronald Leighton said as he spoke from the bench of his packed courtroom in Tacoma, Washington.
Witt's supporters erupted in applause, and some wiped tears of joy from their eyes.
Witt, 46, reacted to the news almost stoically at first, then broke into a wide smile.
The verdict capped a two-week nonjury "bench" trial in which ACLU lawyers presented a string of witnesses who worked with Witt attesting to her outstanding performance in the service.
Air Force attorneys countered that military regulations, including the policy requiring gay service members to keep their homosexuality private, must be uniformly obeyed in order to maintain morale and order throughout the armed forces.
Leighton's decision comes weeks after another federal judge in California struck down the "Don't Ask, Don't Tell" law as an unconstitutional infringement on the free speech and due process rights of gays and lesbians serving in the military.
The Obama administration on Thursday, however, asked that judge to keep the policy mostly intact, rather than issue an injunction against it, while Congress debates the issue.
Earlier this week, the U.S. Senate blocked legislation that would have repealed the policy, instituted in 1993, which continued the long-time ban on homosexual acts in the military but allowed gays to serve in the armed forces so long as they kept their sexual orientation a secret. Otherwise, they are to be expelled.
The administration's position on a court injunction in the California case drew cries from some in the gay rights community that President Barack Obama was forsaking a campaign promise he made to support repeal of the law.
(Editing by Stacey Joyce)
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