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Pre-2008 Posts

UPDATE: Ninth Circuit Rules in Favor of Margaret Witt, Highly Decorated Air Force Nurse, Fired for Being a Lesbian

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Margaret Witt

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.

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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.

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Discussion

11 thoughts on “UPDATE: Ninth Circuit Rules in Favor of Margaret Witt, Highly Decorated Air Force Nurse, Fired for Being a Lesbian

  1. “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.

    The second half of this negates the first. Don’t ask, don’t tell is just that, the Air Force cannot ask and the member jeopardises herself if she tells. However, it says “requires discharge of those who acknowledge being gay” fair enough if she does not tell and if they do not ask, but then comes the OR engage in homosexual activity. Thus meaning regardless of whether the air force asked or if Witt tells, if the Air Force proves she engages in homosexual activity she is out. If this is in fact how the policy is written, the Air Force can (backed by Congress) conduct a witch-hunt and get rid of its homosexual members whether they were asked or told anyone of their personal life.

    I knew a few lesbians in the military and one or two gay men. Our conversations were always so delightful. Not delightful in the sense that we had to have those conversations in the way that we did but delightful in how we were so good at discussing topics without actually discussing those topics. Good times. LOL!

    Posted by ekittyglendower | November 8, 2007, 6:39 pm
  2. So true, Kitty. I found came across this looking for other blogs that might have covered this:

    Most people think “don’t ask, don’t tell” means that if you don’t announce that you’re gay, you can keep your job. It should mean that. But in practice, if you don’t tell, the military can — and often does — investigate and interrogate you until you’re forced to tell.

    Margaret Witt, a major in the Air Force Reserve, is in the process of being discharged because she is a lesbian. How did investigators find out? An anonymous tip. They tracked down her former partner, a civilian, and got the woman to admit that she and Witt had lived together. When they interrogated Witt, she confessed. If she hadn’t, they could have prosecuted her for “false official statements” and imprisoned her for five years. Last fall, a federal judge conceded that Witt had “served her country faithfully and with distinction” and “did not draw attention to her sexual orientation.” Nevertheless, he concluded, she had no constitutional grounds for contesting her discharge. If you don’t tell, they make you tell.

    Just like, “if the witch floats…”

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    Heart

    Posted by womensspace | November 8, 2007, 10:34 pm
  3. I’m afraid she has little recourse. She could however go to the VA and claim PTSD due to the ordeal of being thrown out. But then even that would be thrown in her face later if any one decides to give her case an hearing. Speaking of which, when I was in the military many women had to do things on the “down low.” For example, counseling, either women had to pay someone out of their pocket out in town and not present her active duty tricare insurance in order to get help without having it hang over her head, or if a woman thought she was pregnant and wanted an abortion she would also have to go out in town and bear the expenses (something difficult to do when she is overseas and her leaders will not grant her leave to go back to the states). Even the patriarchal loving stuff suffered repercussions. A young woman got implants on a three-day weekend and when she had to sit out from P.T. (physical training) because of pain she was written up and then sent to stand before the man for destruction of government property and dereliction of duty. This is a true story. I was one of the witnesses. She was eventually processed out of the military. Women are simply not wanted in the military. Don’t even get me started on the porn. Yet when another girl had a video in her possession of her and her boyfriend having sex when we were overseas she had to stand in front of the man too. Why. Because she and boyfriend broke up, he told another bloke about the tape, that guy wanted to see the tape, she refused, he blackmailed, she refused, he told on her. That case was weird and surreal. I was thrown into it less than three days after I landed overseas after a 20 hour flight, all because I was female and senior. Before I heard the girl’s side of the story I was painted a picture of the biggest black widow with the biggest net in the history of humankind.

    Posted by ekittyglendower | November 8, 2007, 11:41 pm
  4. Meanwhile, the army recruits people with known criminials and known violent social disorders. The man who raped the 14-year-old and killed her family had known tendencies. But that’s much better than being gay.

    Posted by Miranda | November 9, 2007, 11:15 am
  5. It does seem that if we can elect anyone but a Republican candidate for president, this Don’t Ask Don’t Tell policy will become a thing of the past. That won’t help Ms. Witt, unless the decision is made to work retroactively.

    Even if a Democrat becomes president, I don’t trust any of the Democratic candidates to draft a truly hands-off policy about gays and lesbians in the military. That long-overdue directive will be fraught, and its supporters will have to fight off all kinds of propaganda and maneuvering from the right wingers who will try to make it another faulty version of “you’re just not good enough to be honored”.

    One good thing, however, is that it will be an executive decision, not a piece of legislation that has to be massaged through Congress with temporal, short-sighted concessions to the intolerant minority.

    And one more thought: it is often in times of war or immediately thereafter that civil rights legislation or executive orders are issued that acknowledge long-overdue rights. Parade ground punctiliousness gives way to the reality of military needs (can you say, “translators”?) and public gratitude or public outrage. This was true of the Civil War (voting rights for black men and citizenship for black men and women) , World War I (voting rights for women), World War II (racial integration of the military), and now, I hope of this lousy Iraq War (full inclusion of gay and lesbian soldiers).

    Posted by twitch | November 9, 2007, 5:16 pm
  6. April,
    “That’s complete bullshit.”

    ????????
    What are you referring to? My post? Other posts? The injustice perpetually enacted on gay and lesbian soldiers? The facts of the article? What?????

    Posted by twitch | November 9, 2007, 10:30 pm
  7. It’s a strange coincidence that this is happening in Washington, where COL Margaret Kammemeyer’s case became such an issue.

    More and more senior military leaders are coming out against DADT. GEN Shalikashvili, who retired in Steilacoom, WA, near Ft. Lewis, is the latest I can think of. It’s happening more and mre for several reasons. One is that more and more gay and lesbian people are coming out i their units, and their peers don’t care, and that was always the big (professed) sticking point for the senior leadership. Then too, there is the linguist issue – the military is critically short in all languages and keeps throwing them out. And there may also be some discomfort at the politicization and religious excesses in the military – there was that egregious case at the Air Force Academy where Commandant himself pressuring people into Evangelical prayer services. That did not go down well. So the shift has set in.

    In the case of COL Kammemeyer, the case caused a lot of soul-searching and changes of heart in the National Guard in Washington State, where all the senior people knew her and had known and respected her for years. It became a constitutional issue too, because the governor sent her to serve at National Guard Bureau at DA, and they wouldn’t accpet her and wanted her putnout, and under the Constitution, that isn’t really their call, but the governor’s. DA won on that one, and it left a permanent bitterness and sense of injustice in the senior leadership in the Washington Guard. Good.

    Posted by Gingko | November 14, 2007, 9:07 pm
  8. Dear Margaret & Partner,
    I do indeed appreciate and thank you for what i’am sure has been an uphill battle with our “all knowing and self rightous federal government system” (incl our military). My father is a West Point grad, my grandfather an Annapolis grad, my other grandfather a retired army full col, my uncle a retired marine major etc… who have not only served, but died for what this country was founded on…PERSONAL FREEDOM and VERY LIMITED government at ALL LEVELS. They are NOT to control and burden WE THE PEOPLE in any way, shape OR form, BUT INSTEAD TO SERVE US AS public servants! So sad that 99.9% of these / OUR employees, paid for by OUR tax dollars forget this! Bless you BOTH for going through all the negative upheavel in you & your partners lives, both emotionally & financially, to make a “dent” in our self rightous and unfair system! God Bless! I wish YOU BOTH nothing but THE VERY BEST!!! STAY TRUE….Jeff Lamdin

    Posted by Jeff Lamdin | May 22, 2008, 5:30 am
  9. Good for her!

    She is a true hero and has served her country with this fight.

    There are plenty of decent men and women in our military forces (and I’m proud to say I know a few), but at the same time, there’s a very dark “old boys club” of intolerance.

    Diversity in the armed forces should hopefully help eliminate this intolerance.

    But my cynical side says that she’ll probably be black-balled for fighting for her rights and challenging the status quo.

    Posted by anonymous_person | May 23, 2008, 3:07 am
  10. Yeah, “don’t ask, don’t tell” isn’t at all what most people think it is; they can still ask any old time they feel like it. I don’t know if that’s really how it’s supposed to work, or if it’s just another example of the military not following their own procedures when the opportunity to pursue a religious/patriarchal agenda arises.

    Anyways, this happened to one of my best friends when he was in the Marines — actually the guy who ratted him out (who didn’t know my friend was gay, only suspected it) managed to get my friend and another guy kicked out, basically by making it look like the other guy was sending love letters to my friend. So, they brought in both of them, asked them if they were gay, and kicked them out when they “admitted” it.

    When they interrogated Witt, she confessed.

    Ugh, they say she “confessed,” like she’s committed a crime. You confess to rape or murder, not to BEING LESBIAN, for Isis’ sake! That’s like me confessing to having dark hair!

    Posted by mekhit | May 24, 2008, 9:22 pm
  11. When they interrogated Witt, she confessed.

    *shivers*

    Shouldn’t that phrasing be giant red flags to EVERYONE by now??

    Posted by hexy | May 26, 2008, 1:07 pm

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