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Suspended Air Force nurse’s case to proceed

Fri., Dec. 5, 2008

She’s challenging military’s ‘don’t ask, don’t tell’ policy on homosexuality

A federal appeals court has denied a government request to reconsider a decision that keeps alive a challenge to the military’s “don’t ask, don’t tell” policy for gay soldiers brought by a former Air Force nurse from Spokane.

Maj. Margaret Witt, a highly decorated flight nurse, was suspended from the Air Force after a military board found she had practiced and declared her homosexuality – a violation of federal policy forbidding openly gay soldiers from serving. She was honorably discharged in October 2007.

Witt and her partner, a civilian, lived together in Spokane from July 1997 through August 2003. A year after the couple broke up, the Air Force launched an investigation into allegations that Witt was a lesbian.

The U.S. District Court for Western Washington tossed out a 2006 lawsuit challenging her suspension as a violation of her rights under the Constitution’s “equal protection” clause. She appealed to the 9th U.S. Circuit Court of Appeals.

In May, a three-judge panel of the Appeals Court denied Witt’s equal protection claim but sent the case back to the District Court to determine whether the application of “don’t ask, don’t tell” to her case furthers the government’s interest in “high standards of morale, good order and discipline, and unit cohesion” in the armed forces.

The court noted that the U.S. Supreme Court in 2003 struck down a Texas criminal statute penalizing homosexual conduct, and it said Witt’s case should be evaluated in light of that ruling. In that case, Lawrence v. Texas, the Supreme Court struck down a Texas sodomy law, saying people have a constitutional right to private sexual conduct.

In their appeal, the Department of the Air Force and Secretary of Defense Robert M. Gates asked the 9th Circuit to hear the issue en banc – with a large panel of judges present.

In a decision published Thursday, the court said no.

That means the case will go forward, said attorney Sarah Dunne, of the American Civil Liberties Union of Washington. The ACLU has been representing Witt since 2006.

Her case will go back to the District Court in Seattle or the government will appeal directly to the U.S. Supreme Court, Dunne said. At issue: whether Witt’s sexuality put her military unit at risk.

“We are looking forward to pursuing her case. We’ll put on evidence as to whether the morale of her unit would be affected,” Dunne said.

Witt, who works as a physical therapist for Spokane Public Schools, said she’s pleased by the court decision.

“It’s another small step towards our country doing the right thing,” she said, adding that she’d love to rejoin her military unit at McChord Air Force Base outside Tacoma.

“We’re a team, and I’m sitting on the bench,” Witt said.

With time running out for the Bush administration, it’s “highly unlikely” that a decision to seek Supreme Court review would be made by the current administration, said James Lobsenz, the Seattle appellate lawyer who brought Witt’s case to the ACLU.

In a lengthy dissent, 9th Circuit Judge Diarmuid F. O’Scannlain said the court’s reversal of a district court order is wrong because it contravenes Supreme Court precedent and creates a split between appeals court circuits on the controversial issue.

The decision also “stretches the judicial power beyond its constitutional mandate” on an essentially political decision, O’Scannlain said.

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