September 25, 2010 | by Chris Johnson
Wash. court rules to reinstate lesbian officer

A federal court in Washington State on Friday ruled that a lesbian Air Force officer discharged under “Don’t Ask, Don’t Tell” should be reinstated into the U.S. armed forces because the government cannot prove that her presence in the military undermined unit cohesion.

In the case of Witt v. Air Force, U.S. District Court Judge Ronald Leighton determined that Maj. Margaret Witt, who was discharged in 2006 after serving in the Air Force for 19 years as a flight nurse, should be allowed back into the military “at the earliest possible moment.”

“The Court concludes that ['Don't Ask, Don't Tell'], when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion,” the decision states.

Leighton rules that Witt’s expulsion under “Don’t Ask, Don’t Tell” violates her due process rights under the Fifth Amendment.

In a statement provided by the American Civil Liberties Union, which represented her in the lawsuit, Witt said she’s “thrilled” with the decision and she “appreciate[s] the Court’s belief in the professionalism of the military.”

“Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaption,” Witt said. “Thousands of men and women who are gay and lesbian honorably serve this country in our military. Wounded personnel never asked me about my sexual orientation. They were just glad to see me.”

Unlike the decision recently reached by a California federal court in the case of Log Cabin v. United States, the decision in the Witt case doesn’t overturn “Don’t Ask, Don’t Tell.” The order is strictly applied to Witt and only allows her to return to her duties in the Air Force.

The U.S. Justice Department didn’t immediately respond to Blade’s request for comment on the ruling or whether the Obama administration would appeal the decision to a higher court.

In 2008, the U.S. Ninth Circuit Court of Appeals remanded the case to the district court in Washington, overturning an earlier decision by the court. The appellate court ordered the lower court to determine whether the U.S. military could prove Witt’s presence in the Air Force harmed unit cohesion before discharging her.

In six days of testimony that took place earlier this month, several witnesses spoke in favor of Witt and her performance in the Air Force. The decision on Friday states that the evidence presented showed Witt was an “exemplary officer.”

“Major Witt’s approach to the fact-finding mission of this Court was to present testimony of members and former members of her unit … who testified persuasively that serving with Margaret Witt and other known or suspected gay and lesbian service members did not adversely affect unit morale and cohesion,” the decision states. “To the contrary, it was Major Witt’s suspension and ultimate discharge that caused a loss of morale throughout the squadron.”

Doug NeJaime, a gay law professor at Loyola Law School, said the court’s decision isn’t surprising considering the level of scrutiny mandated by the Ninth Circuit.

He added the decision sets “a really good precedent for potential other discharges” that would require the government, at least in the Ninth Circuit, to continue the burden of showing that discharging a service member under “Don’t Ask, Don’t Tell” is in the best interest of unit cohesion and morale.

NeJaime said the Obama administration could appeal the decision to the Ninth Circuit, but added he thinks an appeal is unlikely because the order only applies to one person.

“The Justice Department is in a difficult position, and you would think that since this only applies to Maj. Witt, it might make sense not to see this any further and just let things end here, which, I think, is probably what we’re going to see happen,” NeJaime said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

4 Comments
  • #1 this judge has no jurisdiction or authority over the Air Force or any of the Services. #2 While the judge may attempt to get her reinstated based on DADT they are missing the boat on the fact that she did not serve “honorably” she committed adultery which is a against the UCMJ and not conducive to good order and discipline. Her former mates may like her and she may possess quality skills but she is not a good officer and that’s what you are first when you accept a commission, an officer, and Maj Witt IS NOT a good officer.

  • This is a huge victory for gay and lesbian worldwide who are afraid to come out — they should now — this sets up a precedent that will be looked at and cases won due to this court’s ruling. Three cheers for Officer Witt (if she were a man I bet she would have been top gun by now). Usually good officers are the ones promoted to the top and you’lre lucky if you had the opportunity to have one of them. I had three managers who let us ride their shirt tales and many of us were promoted before they were scooped up and promoted to other areas. Cork’s should be flying on those champagne bottles now! Wait can you hear mine? Cheers!

  • In the military, as in any other large organization, it is just a matter of time for any, otherwise qualified and performing, Gay Service Membeor employee to cross paths with an individual who dislikes gay people generally, and who will, for no other reason other than overall animus, make complaints about the individual in an effort to attack him/her.

    While not in the military, I have been employed in positions where I performed highly and received outstanding reviews for quite some time, and yet when it became suspected that I was Gay, then either my supervisor, or another employuee, whichever held haterd gfor Gays, would start down the path of either making completely false claims of poor performance, or of outing me outright.

    This type of thing happens every single day. Animus is hugely due to Religious Descrimination, as has been clearly confirmed by this weeks submission of briefs by Twelve Major Religious Organizations in the pending Prop 8 Appeal. They are:

    The United States Conference of Catholic Bishops
    The California Catholic Conference
    The National Association of Evangelicals
    The Church of Jesus Christ of Latter-day Saints (the Mormons)
    The Ethics & Religious Liberty Commission of the Southern Baptist Convention
    The Lutheran Church—Missouri Synod
    The Calvary Chapel Fellowship of Ministries of California
    The Christian and Missionary Alliance
    Coral Ridge Ministries Media, Inc.
    The Council of Korean Churches in Southern California
    Southern California Korean Ministers Association
    Holy Movement for America

    Many of these groups run political departments within their organizations and publish “Action Alerts” on their websites with easy links encouraging parishioners to vote in ways particular to their religious beliefs.

    Get Religion out of Politics and away from my Constitutional Rights.

  • There were some interesting Corporate Disclosures in the Prop 8 Brief submitted by the groups above. The LDS is an “Unincorporated Organization”?

    The entire brief is here: http://www.scribd.com/doc/38097592/CA9Doc-57

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