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September 24, 2010 in News
Judge reinstates Witt in Air Force Reserve
Margaret Witt, center, stands with Air Force Lt. Col. Victor Fehrenbach, left, at the federal courthouse in Tacoma, Wash., Friday, Sept. 24, 2010. A federal judge ruled Friday that Witt, a flight nurse discharged from the Air Force for being gay, should be given her job back as soon as possible. Fehrenbach, who is gay, is currently fighting his own discharge from the Air Force.
(Full-size photo)(All photos)
TACOMA — Spokane resident Margaret Witt may be the best evidence that “Don’t Ask Don’t Tell” doesn’t work, a federal judge said today. U.S. District Judge Ronald Leighton, in a sometimes emotional ruling from the bench, said Witt can be reinstated in the Air Force Reserves despite the military’s ban on homosexuals serving openly in the military.
Leighton ruled that Witt’s rights were violated and that evidence presented during a six-day trial showed her unit, the 446th Air Evacuation Squadron located at nearby McChord Air Force Base, did not suffer any loss of cohesion or morale from her service or other known or suspected homosexuals among its ranks. On the contrary, morale dropped after she was suspended and later discharged for being a lesbian, he said.
That overrides the general reasons set down by Congress and adopted by the military to keep openly gay members from serving, he said.
“She should be reinstated at the earliest possible moment,” Leighton said, if that’s what she wants. After finishing his formal ruling, he looked at Witt and added “I hope you will request reinstatement with the Air Force Reserves and the 446th.
“You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
The packed courtroom broke into applause after Leighton left the bench, and Witt said later she would “absolutely” request reinstatement as soon as she completes the necessary hours of work as a nurse to meet standards for being a military flight nurse.
Witt would become the first military person discharged under the 1993 policy to be ordered returned to service by a federal judge, her attorney Sarah Dunne said. Another openly gay service member was reinstated before the policy was instituted and some openly gay soldiers have been allowed to remain with their Army units that are being called up to combat duty. But applying Don’t Ask, Don’t Tell to an individual and his or her unit, rather than the Armed Forces as a whole, is already being described as the “Witt standard.”
A decorated flight nurse, Witt was suspended in 2004 after being “outed” by her former partner and the husband of a co-worker with whom she was having an affair. The woman eventually left her husband and now lives with Witt.
She said she didn’t consider herself a lesbian when she joined the Air Force in 1987 after graduating from college with a nurse’s degree, and dated both men and women at that time. She did consider herself a lesbian in 1993, when Congress passed and the military enacted the “Don’t Ask, Don’t Tell” policy. But she understood the policy to mean that she couldn’t tell anyone about her sexual orientation, and the military couldn’t ask.
When she was interviewed by a military attorney in 2003, she said she was asked, but didn’t answer. After her suspension, she filed suit to keep her job in the Air Force Reserves 446th Air Evacuation Squadron, and made public statements that she was a homosexual. A military panel turned down her appeal to return to service and gave her an honorable discharge.
Leighton originally dismissed the suit, saying that Congress has a “rational basis” to enact the policy after holding hearings and concluding it was in the best interest of military order, discipline and morale. But the 9th U.S. Circuit Court of Appeals sent the case back, saying that whatever Congress may have decided for the military as a whole, Witt had a right to a trial on whether the policy, as applied to her contributes to that order, discipline and morale, or whether something other than discharge would achieve those goals.
Members of her unit testified at the trial that they knew or suspected Witt was a lesbian, but that didn’t matter to them. What mattered was that she was good at her job, so good that at one point she was in charge of making sure other members of the unit were up to the military’s exacting standards.
“It was Major Witt’s suspension and ultimate discharge that caused a loss of morale in the unit,” Leighton said. The 446th is a highly professional, well-trained unit that provides a vital service to troops around the world, he added.
“There is nothing in the record before this court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds…Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.”
Federal attorneys had urged Leighton to look beyond the impact on the squadron and consider polls that show some military members feel that openly gay members will hurt military readiness and erode morale. That’s a possibility, he acknowledged, “just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.”
But the fact that the Army allows openly gay members to go to war if their discharge process has not yet begun demonstrates that the Army has decided that “openly gay service is preferable to going to war without a member of a particular unit.”
The federal government noted during the trial that by having an affair with a married woman, Witt violated military rules against committing adultery. But Witt was discharged for violating Don’t Ask, Don’t Tell, not for adultery, and was given an honorable discharge without any mention of that violation, Leighton said. He said he wouldn’t use an uncharged offense to uphold an otherwise unconstitutional discharge.
After delivering his ruling, Leighton told Witt she’s become a central figure in a “long-term and highly charged civil rights movement” and that would be stressful. But she said something during the trial that resonated with him, and he hoped she would remember. She testified that when she was forced to tell her parents she was a homosexual because she was filing the lawsuit that they provided “unfailing love and support” for her.
“Notwithstanding the victory you have attained here today, for yourself and for others, I would submit to you that the best thing to come out of all this tumult is still that love and support you receive from your family,” he said. “You are truly blessed.”
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misjustice on September 24 at 2:33 p.m.
OMG! This is a huge win for Witt and others discharged under DADT! Honestly, I did not think that the court would find in her favor.
MrNatural on September 24 at 2:57 p.m.
Congratulations!…It’s great to see equitable justice prevail
SpokaneLiberal on September 24 at 3:12 p.m.
Wow, that was fast.
GoYankees on September 24 at 3:35 p.m.
Excellent!!! This is a step in the right direction for US Citizens!
malcolmd on September 24 at 3:41 p.m.
Awesome!
oneanddone on September 24 at 3:44 p.m.
Cool. Love that judicial system. It won’t be long before judges will be telling people where they can live, and with who. They’ll tell you that your local government can take your property, but don’t worry - the check is in the mail. Then a judge will tell this guy his opinion is fine, but this guy’s is not. Or, you should be paid this much but the nice lady next to you deserves double. Then they’ll tell soldiers, if they don’t feel like it, orders are really optional. Oh yeah, and YOU have to pay taxes but YOU don’t. Judges think they run the world - oh wait, those 9 opinions in DC actually do. And not one was elected. The checks and balances are out of whack.
garyc on September 24 at 3:55 p.m.
The appeals court ruling changed everything.
“Leighton originally dismissed the suit, saying that Congress has a “rational basis” to enact the policy after holding hearings and concluding it was in the best interest of military order, discipline and morale. But the 9th Circuit Court sent the case back, saying that whatever Congress may have decided for the military as a whole, Witt had a right to a trial on whether the policy, as applied to her contributes to that order, discipline and morale, or whether something other than discharge would achieve those goals.”
Government couldn’t prove this, and thus lost.
soccermomsusie on September 24 at 4:34 p.m.
I think this judge was impaired (perhaps celebrating too early) when he said in:
Paragraph 5 “Your will provide the best evidence that open service of gays and lesbians will have no adverse affect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
Paragraph 15 “just asi it was a possiblity during the integration of blacks, other minorities and women into the armed forces.”
“Your will provide….” What does that mean?
And “Just asi it was a possi blity…..” Huh?
I am praying for everyone involved.
HEAR OUR VOICE!!!!
mdriftmeyer on September 24 at 6:21 p.m.
@soccermomsusie:
The error is as follows:
Original: Paragraph 5 “Your will provide the best evidence that open service of gays and lesbians will have no adverse affect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
Corrected: Paragraph 5 “Your Will provides the best evidence that open service of gays and lesbians will have no adverse affect on cohesion, morale or readiness on this or perhaps any Air Force or military unit.”
Her own Will of being provides the best evidence ….
mdriftmeyer on September 24 at 6:21 p.m.
Congratulations to Witt and soon the same rights afforded to us heterosexuals will be afforded to us all.
deacon46 on September 24 at 6:59 p.m.
To the Soccer Mom who makes it clear everytime she writes that she doesn’t like or even tolerate any differences amongst us and “hates” non english speaking peoples- you realize soccer was invented by non english speaking people and is a major sport of many european countries who are not american and who do not speak English or even care to. Maybe you should rethink your internet “name”. Moron is probably better suited.
eagleproducer on September 24 at 7:14 p.m.
williiam: Settle down, billy boy, suz is all about satire. Ever heard of it? Maybe if I did a parody of your lack of wit you’d get it…?
worthasecondlook on September 24 at 8:42 p.m.
Spoketucky,
Why the hunchback basketball player picture?
Bruce (aka thatoneguy) on September 24 at 10:21 p.m.
Yay!
WillyPeter on September 28 at 9:43 a.m.
Funny! The 9th Circuit has again made its disdain for the military - over, and over,and over - clear.
Civilian judges that don’t honestly, truthfully, knowingly have any idea about the military like to pretend that they are capable of determining rightfully how the military should operate. Heck, we otta just do away with the UCMJ and let judges run the military. Think how much money could be saved; no JAG, no military courtrooms, no brigs or stockades - you know, places like Portsmouth, Leavenworth, that awful place in Cuba, Wow! Watta idea. Imagine the savings.
And save all that precious time that presidents and congress spend trying to get this right…let’s just let judges do it…as a matter of fact, why don’t we send congress home. The 9th Circuit says those 450 (+/-) legislators can’t get this stuff right. But a handful of judges can (?). Just think of the money we’d save.
Then when a soldier, marine, sailor, airperson, doesn’t behave or follow orders, maybe like working in jeans and a t-shirt, the commander could just write him/her a citation and, voila, the serviceperson would pay a fine or go to court…or quit…period. After all, …First Sergeants have been saying to G.I.s forever, “This unit would probably function better without your sorry a*s gumming up the works.” And we now know that presidents say the same thing to generals.
So service folks, the millions of you wearing uniforms, don’t worry. Just make a case that your erroneous behavior…you know, not obeying orders, etc., didn’t really, actually, positively create disorder, or harm the morale, cohesion, or operational effectiveness of the entire Armed Forces of America, and judges like Leighton will get you promoted and, probably, stationed anywhere in the world you’d like to go. And in your assigned two-person room, you can have a room mate of either sex; your choice.
Whatta country……