Don't Ask Don't Tell may be struck down.

tavdyThu 22/05/08 06:31

http://seattlepi.nwsource.com/local/363987_witt22.html

Court to rehear 'don't ask, don't tell'
Appeals judge questions policy after nurse fired

A decorated Air Force nurse who lost a challenge to the military's "don't ask, don't tell" policy and was fired for having a lesbian relationship will get another chance to state her case before a judge.

This time, Maj. Margaret Witt will likely prevail, one of her attorneys said after his Spokane client won a round Wednesday in a federal appeals court.

A panel of the 9th U.S. Circuit Court of Appeals said it was unclear whether the military's policy, as specifically applied to Witt, would hurt unit cohesiveness, as the Air Force had argued in winning its case in July 2006 in U.S. District Court.

The appeals court overruled the decision of District Judge Ronald Leighton of Seattle and sent the case back to him.

"The government now has to make a showing that it can't possibly make" -- that Witt's presence causes a problem in her unit -- given that those who worked with her in the military supplied her with glowing recommendations and outrage at her ouster, said James Lobsenz, part of her ACLU legal team.

"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 engaging in homosexual acts. Congress enacted the law in 1993, saying that gay and lesbian service members would be detrimental to unit cohesiveness and readiness.

The government's position was that the policy prevailed in all cases involving homosexual service members if it "made sense" in only a single case, Lobsenz said, but the appeals court said the government must meet a higher test and prove that the sexual orientation of Witt in particular would cause harm.

That's unlikely, he said, based on affidavits from about 10 members of her unit who said that, whether they knew or suspected she was a lesbian, it made no difference in the quality of her work. The members said they wanted her reinstated, with some threatening not to re-enlist.

Writing for the majority of the three-member appeals court panel, Judge Ronald Gould said that "the Air Force attempts to justify the ('don't ask, don't tell') policy by relying on congressional findings regarding 'unit cohesion' and the like, but that does not go to whether the application of (the policy) specifically to Maj. Witt significantly furthers the government's interest."

In a career of more than 18 years, Witt, a reservist, earned stellar reviews for her work and was twice decorated by President Bush for evacuating wounded troops in the Middle East and aiding civilians on humanitarian missions.

Witt lost her job after the Air Force investigated her six-year relationship with a civilian woman. She received final notice of her honorable discharge last fall.

A Justice Department lawyer in Witt's case could not be reached for comment. A spokesman said the department was reviewing the decision.

The appeals court also affirmed Leighton's dismissal of Witt's claim that she was denied her right to equal treatment. Attorney Aaron Caplan of the ACLU had argued that child molesters in the armed forces were treated more leniently than homosexuals because molesters do not face a mandatory discharge.

"We don't have any reason to go any further with the equal protection claim because we won on the due process claims," Lobsenz said Wednesday.

Caplan said Witt, a physical therapist for the Spokane School District, was excited by the decision.

"She always knew that if a court were to actually have an opportunity to look at the evidence and see what a fine officer she is, and how her continuing to serve would not cause adverse effect on the military, that she'd be reinstated," he said.

In a statement released by the ACLU, Witt said: "I am thrilled by the court's recognition that I can't be discharged without proving that I was harmful to morale. I want to serve my country. ... I am proud of my career and want to continue doing my job. Wounded people never asked me about my sexual orientation. They were just glad to see me there."