Being gay isn’t enough to get kicked out
By Patrick Winn - Staff writer
Posted : Sunday May 25, 2008 11:19:08 EDT
By all accounts, Maj. Margaret Witt didn’t ask and definitely didn’t tell. The highly decorated flight nurse, a literal poster girl featured on Air Force promotional materials, preferred to keep her job intact and her sexuality quiet.
Then came a tip-off to her command that unraveled Witt’s 19-year career and set into motion a lawsuit that could threaten the Defense Department’s ban on homosexuals in uniform. Witt’s legal challenge to her dismissal from the Air Force, at first dismissed by federal courts, has been revived by judges from the 9th U.S. Circuit Court of Appeals in San Francisco.
The military, a trio of the appellate judges ruled Wednesday, cannot dismiss service members just because they’re gay.
Commanders, they said, must prove the person’s homosexuality harms unit cohesion by questioning others in the unit, a process the justices themselves derided as a distraction — and likely a privacy violation in the wake of the Supreme Court’s 2003 decision to nullify Texas sodomy laws.
“When the government attempts to intrude upon the personal and private lives of homosexuals,” Judge Ronald M. Gould wrote, “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.”
As Witt’s attorneys predict the downfall of Congress’ “don’t ask, don’t tell” approach to gays in the military, other groups insist the ban will stick. Even sympathizers, while claiming victory in the ruling’s wake, admit the policy will be tough to overturn.
“This is a win, but it’s a procedural win,” said Victor Maldonado of the Servicemembers Legal Defense Network, which filed a brief in support of Witt, who was backed by the American Civil Liberties Union of Washington state. Roughly 12,000 service members have been discharged under the “don’t ask, don’t tell” policy since 1993, according to the network.
Witt’s supporters believe the recent ruling, and a pending ruling in a similar case now being considered by the 1st U.S. Circuit Court of Appeals in Boston, could push the issue to the Supreme Court and help convince Congress to eliminate the ban.
Still, the 9th Circuit “doesn’t have a very good batting average with the Supreme Court,” said military legal expert Eugene Fidell of the National Institute of Military Justice.
“I ultimately think it’s an issue Congress will have to address,” he said.
Witt, a reservist assigned to the 446th Aeromedical Evacuation Squadron at McChord Air Force Base in coastal Washington State, lived for six years with a civilian lesbian partner. They once shared a home in Spokane about 250 miles away, according to the ruling, but the relationship dissolved in 2003.
Prompted by an anonymous tip-off to Witt’s homosexuality, Air Force Reserve attorney Maj. Adam Torem told Witt in 2004 that he was investigating the claim. She declined to speak to him or a chaplain who reached out to her later. Witt’s job was soon frozen — along with her pay and time towards retirement — as she fought the decision.
In 2006, Witt was told she would be honorably discharged for participating in homosexual activity. Having joined the Air Force as a second lieutenant in 1987, she was within a year of retirement and poised for promotion to lieutenant colonel.
Ten members of her unit have made statements suggesting she was well-liked. Her medals include the Meritorious Service Medal, the Air Medal and the Air Force Commendation Medal. In 2003, after returning from Oman to support Operation Enduring Freedom, President George Bush noted her “airmanship and courage” in a citation.
Witt, according to the ruling, never told any service member she was homosexual and never had sexual relations on duty or on military grounds.
“People are under the misguided perception that ‘don’t ask, don’t tell’ means don’t show up to work in drag,” said Maldonado, whose group is assisting 800 or so gay service members facing discharge or considering disclosing their homosexuality. “Many of our cases are about people who are told on. They had a bad breakup. An ex says, ‘Screw you, I’m going to your command.’ ”
Few, he said, are interested in flaunting their sexuality.
Forcing commanders to justify a service member’s discharge as a threat to morale, Witt’s supporters say, will prove that many units are comfortable with openly gay troops. “If the various branches of the Armed Forces have to start proving each application of the policy makes sense, then it’s not going to be only Maj. Witt who's going to win,” said James Lobsenz, Witt’s Seattle-based attorney. “Eventually, they're going to say ... it's time to scrap the policy.’" A Defense Department spokesman stated that the military simply carries out law enacted by Congress.
But Elaine Donnelly, head of the Center for Military Readiness, doubts either the Supreme Court or Congress will uphold the appellate court’s findings. Requiring commanders to prove individual gay service members are harming morale is unrealistic, she said.
“Just imagine a federal judge listening to testimony on issues such as that,” Donnelly said. “It’s an absurd burden.”
“I’ve also talked to staffers for even Democrat members (of Congress), and I sense they don’t want to respond to this issue. They know it’s problematic,” she said. “Perhaps explosive.”
Witt, shortly after the ruling, reiterated that she still wants her job back.
“I am thrilled by the court’s recognition that I can’t be discharged without proving that I was harmful to morale,” Witt said. “Wounded people never asked me about my sexual orientation. They were just glad to see me there.”
The Associated Press contributed to this report.
http://www.airforcetimes.com/news/2008/05/airforce_dontask_052208/
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