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Gay policy challenged

Margaret Witt in 2006. Associated Press
 (Associated Press / The Spokesman-Review)
Margaret Witt in 2006. Associated Press (Associated Press / The Spokesman-Review)

OLYMPIA – Today, nearly three years to the day after Maj. Margaret Witt was told she was being forced out of the Air Force for being a lesbian, she will again don the uniform she’s fighting to keep.

In a nationally watched case, Witt – a Spokane school district physical therapist since 1999 – is challenging the “Don’t ask, don’t tell” law under which the military has dismissed thousands of gays and lesbians since Congress approved it in 1993. Today in Seattle, a panel from the 9th Circuit Court of Appeals will hear the case.

“It’s not necessarily the 15 minutes of fame I wanted,” said Witt, 43.

So far, it’s proven an uphill battle. Witt went to Georgia a year ago for an Air Force administrative hearing. She detailed her service and said what the Air Force had meant to her. Nothing changed. The board recommended an honorable discharge.

She also filed suit against the Air Force, fighting to stay in. But in July 2006, U.S. District Court judge Ronald B. Leighton dismissed the case, saying that Don’t Ask, Don’t Tell “remains constitutional.” Backed by the American Civil Liberties Union, Witt appealed to the 9th Circuit.

“I really have faith that if I can’t succeed in this, someday someone will, and maybe I’m helping make it one step closer,” Witt said.

The government’s legal team says Witt’s got no case. For more than 25 years, their brief notes, appeals courts “have consistently upheld both the current statute and the previous, more restrictive regulatory policy prohibiting homosexual acts by military personnel.”

Witt, a decorated flight nurse once pictured on Air Force recruiting fliers, was active-duty for eight years, transferring to the reserves as a captain in 1995. By 2004, she managed more than 200 flight nurses and medical technicians. She’d served in Germany and Oman, earned a commendation for saving a patient’s life in-flight, and received an Air Medal citation from President Bush.

The Air Force “was kind of my purpose, I guess, and really an extended family,” Witt said.

From the summer of 1997 to autumn 2003, according to court documents, Witt was in an intimate relationship with a civilian woman in Spokane. When an Air Force investigator – apparently acting on a tip – interviewed Witt’s former partner in 2004, the woman confirmed the relationship.

On Nov. 4, 2004, Witt was called to the office of her commander, Col. Jan Moore-Harbert. She told Witt she was being kicked out of the Air Force. Court documents say Moore-Harbert later wept, calling it the hardest thing she’d ever had to do in the Air Force.

Witt was banned from working or training with her unit. Her pay and points toward retirement – which requires 20 years of service – were halted. She said she was also ordered not to talk to anyone about what was happening.

“And when people started asking, they just said, ‘She won’t be back,’ ” she said. “I didn’t get to say goodbye to anybody. That was the hardest part.”

Witt’s partner was never in any branch of the military, and the couple’s physical relationship took place in the home they shared in Spokane, hundreds of miles from Witt’s duty station.

“Major Witt has never engaged in sexual relations with a woman while on duty, nor has she ever engaged in sexual relations with a woman on the grounds of any Air Force Base,” her attorneys wrote in their brief to the court for arguments today. “Major Witt’s presence in the Air Force never harmed military discipline, order, morale or combat readiness.”

In fact, they say, Witt is wanted back by many members of her unit. Many suspected that she was a lesbian, as it turned out, but apparently didn’t care.

“Our squadron has always had gays and lesbians in it, and their presence is widely known,” an NCO identified in the brief only as Tech. Sgt. Julian told Witt’s attorneys. “But until this decision to seek a discharge against Maj. Witt, it has never been an issue.”

Nearly two dozen nations, including Canada, the United Kingdom and Australia, allow openly gay and lesbian troops to serve, Witt’s attorneys say. Kicking Witt out, they say, is absurd, since the Air Force is already short more than 100 flight nurses.

But government lawyers defending the policy point to the public debate in the early 1990s, when then-President Clinton and Congress were building what became the Don’t Ask, Don’t Tell policy and law.

The Joint Chiefs of Staff, after extensive hearings, concluded that the presence of openly gay or lesbian troops “would have an unacceptable, detrimental and disruptive impact on the cohesion, morale and esprit of the armed forces,” according to the government’s brief in the Witt case.

In the legislation, Congress also said at the time that military life is “fundamentally different” from civilian life because of the military’s unique responsibilities and living conditions. It also noted that the military has its own laws, rules, customs and traditions, “including numerous restrictions on personal behavior that would not be acceptable in civilian society.”

Accordingly, Congress said, the ban on homosexual conduct “continues to be necessary.”

Judges have been reluctant to second-guess the law. As Judge Leighton wrote, “Don’t Ask, Don’t Tell represents a rational response to a legitimate governmental concern.”

Advocates of allowing gays and lesbians to serve were heartened in 2003, when the U.S. Supreme Court threw out a Texas anti-sodomy law. The court said it’s a “fundamental human right” to form intimate romantic relationships.

“Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” the high court said,

Rather than flatly barring open gays and lesbians from the military, there are less restrictive ways to protect military discipline, morale and unit cohesion, Witt’s attorneys say. To avoid favoritism or harassment, for example, Air Force rules ban anyone from sleeping with anyone in their chain of command.

Witt has been back with her old unit twice, invited – as a civilian – to retirement ceremonies. At the first visit, they gave her a standing ovation.

“That was kind of my farewell.”

At the second, she walked in and was handed two dozen roses.

“It just brought me to tears,” she said.

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