Good news for Margaret Witt and her partner and for all lesbians and gay men in the military, good news for all who are committed and dedicated to human and civil rights for all people. The Ninth Circuit has ruled that her case should proceed and has reinstated her in the military.
Major Witt filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.
The decision was notable for the standard the appeals court instructed Judge Leighton to use in considering the case. The panel said judges considering cases claiming government intrusion into the private lives of gay men and lesbians must require the government to meet a heightened standard of scrutiny.
The usual standard is called “rational basis” review, which merely requires the government to offer a rational reason for a law or policy. The rationale offered by Congress for the “don’t ask, don’t tell” policy is that openly gay and lesbian service members threaten morale, discipline and unit cohesion. Several courts have sustained the policy as rational.
On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.
Following is my original post of last November.
SEATTLE (AP) – A lawyer for a highly decorated military flight nurse who was fired for being gay asked a federal appeals court panel Monday to reinstate her lawsuit against the Air Force, saying her discharge violated her right to be free from governmental intrusion in her private life.
Maj. Margaret Witt, 42, was suspended in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. She was honorably discharged last month, after having put in 18 years – two short of what she needed to receive retirement benefits.
Attorney James Lobsenz asked the three judges from the 9th U.S. Circuit Court of Appeals to invalidate the 1994 “don’t ask, don’t tell” policy or, at least, reinstate Witt’s lawsuit. “Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.
Lobsenz argued that the Supreme Court’s 2003 ruling striking down anti-sodomy laws in Texas recognized a “fundamental right” of consenting adults to be free from governmental intrusion into their bedrooms. The relationship was with a civilian woman and took place in their home in Spokane, hundreds of miles from McChord Air Force Base, Witt’s duty station in Western Washington.
“At all times she kept her sexual life private,” Lobsenz said.
He also noted that even heterosexual child molesters are allowed to prove, on a case-by-case basis, that they should not be discharged, but gays who engage in homosexual conduct are automatically excluded.
Monday’s arguments centered on the ruling in the Lawrence v. Texas case, and whether it in fact established a “fundamental right,” which would require a higher burden for the government to show that “don’t ask, don’t tell” is constitutional.
Jonathan F. Cohn, a deputy assistant attorney general with the Department of Justice, acknowledged that the Texas case is not “a pinnacle of clarity,” but said the justices know full well the significance of the phrase “fundamental right” and didn’t use it in their ruling: “The court very clearly stops short of … recognizing a fundamental right.”
And if there’s no fundamental right, Cohn said, the court should defer to the government’s argument supporting “don’t ask, don’t tell”: that having gays in the armed forces could be disruptive.
Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. As a nurse, she cared for injured patients on military flights. She was promoted to major in 1999, and she deployed to Oman in 2003 in support of the U.S. invasion of Afghanistan. A citation from President Bush that year said, “Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions.”
Her suspension the next year came during a shortage of flight nurses and outraged many of her colleagues, one of whom, a sergeant, retired in protest, saying he no longer wished to be part of the military. The two Air Force officers who met with Witt in 2004 to tell her she was being fired, Col. Jan Moore and Maj. Verna Madison, said they were terribly upset about it.
Witt, who is backed by the American Civil Liberties Union, attended Monday’s arguments wearing her uniform. She declined to speak with reporters.
Her lawsuit is one of two that have been argued this year in federal appeals courts challenging the “don’t ask, don’t tell” policy.
The other case was argued in Boston in March. Twelve gay and lesbian veterans who were dismissed under “don’t ask, don’t tell” asked a federal appeals court to reinstate their lawsuit, arguing before the 1st U.S. Circuit Court of Appeals that the policy is comparable to government-sanctioned discrimination against blacks.