SEATTLE (AP) — Opponents of the “don’t ask, don’t tell” policy against gays serving in the military are hoping for another major legal victory as a federal trial begins Monday over whether to reinstate a lesbian flight nurse discharged from the Air Force Reserve.
The trial comes just days after a federal judge in California declared “don’t ask, don’t tell” an unconstitutional violation of the due process and free speech rights of gays and lesbians. While the ruling does not affect the legal issues in the case of former Maj. Margaret Witt, gay rights activists believe a victory — and her reinstatement — could help build momentum for repealing the policy.
“There’s already political momentum to do something to repeal this unfair statute,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles who is on Witt’s legal team. “Judicial opinions from multiple jurisdictions saying there’s a constitutional problem with this ought to encourage Congress to act more swiftly.”
Witt was a member of a squadron based at McChord Air Force Base near Tacoma when she was suspended in 2004 and honorably discharged. She challenged the constitutionality of her dismissal, and a federal appeals court panel ruled in 2008 that the military could not discharge service members for being gay unless it proved that the firing furthered military readiness.
The case was sent back to U.S. District Court in Tacoma for Judge Robert Leighton to determine whether Witt’s firing met that standard. Several of Witt’s former colleagues are expected to testify that she was an excellent nurse, and it was her dismissal — not her sexual orientation — that caused morale problems in the unit.
Justice Department lawyers representing the Air Force note that the case has put them in the position of defending a law neither the president nor the department itself believes is good policy. Defense Secretary Robert Gates also favors repealing the 1993 law, which prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.
Government lawyers nevertheless insist Witt’s firing was justified — and that the panel of the 9th U.S. Circuit Court of Appeals did not know the extent of her conduct when it sided with her in 2008. That conduct included a long-term relationship with a civilian woman, an affair with a woman who was married at the time and two earlier relationships with fellow servicewomen, Witt acknowledged in a deposition in May.
It was a 2004 e-mail from the husband of the married woman to the Air Force chief of staff, Gen. John Jumper, that prompted the investigation into Witt’s sexuality.
Witt acknowledged the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.
For those reasons, it says, Witt’s firing did further military goals, even if 19 current and former members of Witt’s unit have submitted declarations saying they had no problem serving with her.
“Those co-workers are not military commanders, and the military cannot operate by a unit referendum process in which disciplinary policies and outcomes are determined by the individual opinions of a few unit members,” Justice Department attorney Peter J. Phipps wrote in a court filing.
The Air Force also says Witt can’t be reinstated because she no longer meets Air Force nursing requirements, something Witt’s attorneys dispute.
Witt’s attorneys, led by the American Civil Liberties Union of Washington, say that it is the Air Force’s burden to prove that her reinstatement would be a detriment to unit cohesion. And, ACLU attorney Sarah Dunne says, the Air Force has provided no such evidence.
Gen. Charles E. Stenner Jr., an expert witness for the government, said in a deposition that he didn‘t know if Witt’s reinstatement would negatively affect military functions, and the current commander of Witt’s unit, Col. Janette Moore-Harbert, acknowledged having no evidence to that effect.
The trial is expected to last seven days. Meanwhile, the Senate could take up a defense bill passed by the House that includes a provision to end “don’t ask, don’t tell.”
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AMERICANCITIZEN
Posted on September 13, 2010 at 1:04pmI feel it is no one’s business what she does outside of work, no different than me or you.
Report Post »Like anywhere else if you do something on the clock, other than work than you risk getting caught and disciplined.
So outside of work, she can live her life with who ever
On the clock she should follow rules, we all have to follow harrassment policies, code of conducts, etc
aznyron
Posted on September 13, 2010 at 10:08amshe did have affair with two of her military staff personnel which violates her Oath as for the married women that should not be counted against her since she is a civilian but I am no legal scholar so it only my opinion which means nothing in a court of law
Report Post »icesk8rgirl96
Posted on September 13, 2010 at 2:14amI do believe in the “Don’t ask, don’t tell” policy. I don‘t think that your sexual orientation is the military’s business, it has nothing to do with how you perform in the military. Although I am a devote Christian and do not believe in same sex relationships, I am still a believer in the dont ask dont tell policy. It is not my place or the military’s place to judge them, the judging is up to HIM.
Report Post »kc5jmr
Posted on September 24, 2010 at 10:16pmI’m not, there are just too many ways that it will cause chaos with good order and conduct if found out. We had a guy in training who got found out and was transfered out due to threats made of a Blanket Party on him. Gays have no business in my opinion serving with all the hazards they can cause, and not just the medical one either
Report Post »Former_Marine
Posted on September 12, 2010 at 10:09pmSo much for that “clean, and professional appearence…” I’m sure I read that (at least a paraphrase of the aforementioned) somewhere in a manual.
Report Post »Former_Marine
Posted on September 12, 2010 at 10:16pmIf you want to declare your “Individuallity,” do it on your own time… not on the taxpayers dime… get in the fight (or mission) or get out!!
Report Post »lynnetteg
Posted on September 12, 2010 at 9:51pmas one who you served there we many that liked their own sex… not my business but why should they
Report Post »be given special treatment in an ALL Volunteer Force… There is no draft so the military really doesn’t need her… Here we are in 2 wars and this is what they are worrying about….Makes me want to puke.
debak
Posted on September 12, 2010 at 8:11pmIf this is discrimination then there should be a huge onslought of law suits back decades for flat feet, bad eyesight, color blindness, genetic defects, chronic diseases, ect… Homosexuality, in my opinion, is a choice, however, if it isn’t as they claim, then it’s no different than the conditions mentioned and should be treated no differently. This lady went in KNOWING the DADT policy, she chose to break it, so too bad. If I joined the military knowing if I broke the policies I would be booted, then decided I would break them anyway and was booted for it, so be it, that was my choice both ways.
Report Post »BurntHills
Posted on September 12, 2010 at 8:07pmas for lesbians in barracks with any of our women in our all-American family, our women say no way. not with all the abnormal public sexual-display crud that goes along with them. this family wouldn’t feel comfortable in the showers or in combat with any of the gays [of either sex] “soldiers”, what if some HIV gay blood got on our normal healthy soldiers and somehow they contract HIV and AIDS and died horribly later because a gay bled on them. there is always that risk with contact with gays.
as for this lesbian USAF idiot wanting back in, she should have thought of that before she had that gay need for super-attention about their sex acts, their ”LOOK AT ME sexually” abnormal crud. she broke the USAF rules, period. kick her out and let her start a gay bar next to Ground Zero mosque.
Report Post »walkwithme1966
Posted on September 14, 2010 at 12:27pm@Burnthills – excuse me but are you some sort of idiot! Because your post reads as if you are – just checking!
Report Post »kc5jmr
Posted on September 24, 2010 at 10:09pmI think they should let her back in and transfer her to the Disciplinary Barracks in Ft. Leavenworth for Lying undetr oath when she Enlisted, and violated Article 15 of the UCMJ, as whell as caused a breakdown of good order and conduct within her unit by coming out like she did. I’m for ging back the good old days when you were arrested and jailed in the military if they found out what your sexual preference is.
Leviticus 20:13 (New King James Version)
13 If a man lies with a male as he lies with a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them.
Being that all things equil for woman feel free to apily this to woman too.
Report Post »beekeeper
Posted on September 12, 2010 at 6:03pmLet’s just remember a few facts: DADT was instituted by Clinton’42, and remained in-place buring Bush’43 – now Obama’44 is half-way through his first term and is awaiting a committee report to tell him if he should extend or end DADT. DADT was pointed out by Obama’44 as bad legislation and felt it should be over turned ASAP. Obama’44 had super-majorities in both chambers at the start of his Presidency, he choose not to act on this (much to the chagrin of the GLBT crowd that supported his campaign).
In simple terms, this young lady broke the rules in several ways (being involved in an affair, putting two fellow soldier in the “hot seat” after she advised them of her orientation, etc.) and she was Honorably Discharged (a gift, from what I understand – if you break Military Code, you don’t typically get an Honorable DIscharge). All the action outside the military, POTUS’s opinion, the Justice Department’s position, and popular concensus don’t change the facts, and the fact is in 2004 she violated the military code of conduct.
That’s really all there is to it…
Report Post »M31Sailor
Posted on September 12, 2010 at 9:58pmBee
Great post, Bet her current lover/partner/wife /squeeze is a ACLU lawyer
Report Post »Debrabate
Posted on September 12, 2010 at 5:50pmwell, she did admit to an extramarital affair. I know many service members that are relieved of duty or loose a few stripes due to KNOWINGLY participating in extramarital affairs. that is a violation of the rules and regs for the military.
Report Post »kc5jmr
Posted on September 24, 2010 at 9:51pmActually your right the Extermarital affair is a violation of the UCMJ. Article 15 of the UCMJ comitting Adultry (thats all parties involved if military) are punishable. I don’t remember the punishment exactly but any good Military Lawyer will.
Report Post »smartypoop
Posted on September 12, 2010 at 4:10pmWell, I was hoping to have an intelligent conversation on the subject, but it would appear that the inmates have taken over the asylum.
Report Post »I’m guessing there is more to the story, but I think the whole topic is interesting. I wish we hadn’t spent all that money doing the Military impact study that is due out in December, or I wish we could have done it faster. I really want to see what they show in the study before I opine on the validity of DADT.
janddjohnson
Posted on September 12, 2010 at 4:02pmIf she is reinstated…will she get back pay?
Report Post »Unit_of_Fire
Posted on September 12, 2010 at 3:55pmShe amatorized her debt and figured its quicker to fulfill her contract. I bet she just doesn’t want to pay Uncle Sam back for the money it cost to school her. Probably made up the lesbian stuff to get out after getting a diploma and a weekend of ‘sperrrimentin.
Report Post »anigmanm
Posted on September 12, 2010 at 3:49pmNow while all the pc crowd gets all excited about the possibility of her reinstatement to the military let us not forget that she was the one caught violating the UCMJ., she was the one having an affair with a married woman, she was the one having affairs with service members………..ooops there we go again, the law only counts when the person is not different, illegal or a politician, sorry I forgot what country I was living in for a moment.
Report Post »janddjohnson
Posted on September 12, 2010 at 3:45pmI am a female…If I were in the military I would not want to be in the shower with women I knew were lesbians..What about my rights?
Report Post »CherryBomb
Posted on September 12, 2010 at 3:54pmUnfortunately, YOUR rights don’t really count, Jand. Your only right…to be called a bigot.
Report Post »robert5635
Posted on September 12, 2010 at 4:15pmAmen to that. Was in the military, 30 man rooms are not good place to find someone taking a peek at you. Will love women (wish could say a woman, am single) til the day I die, even though been accused of being gay because I didn‘t have a revolving door on my barrack room’s door. rather die single and straight. By admitting she was gay she was openly defying duly appointed authority, and violated her oath.
Report Post »broker0101
Posted on September 12, 2010 at 3:39pmThis oughta be good. This is the ONLY issue on which the bedwetters care about the military (besides defunding it)….. Let’s sit back, read and laugh……
Report Post »Danglingbags Daddy
Posted on September 12, 2010 at 3:38pmAnybody see my boy around here???? I want another beer and I need some help emptying my colostomy bag.
Report Post »Skwerl
Posted on September 12, 2010 at 3:46pmHe’s out back pulling the legs off crickets, Bag Daddy.
Report Post »CherryBomb
Posted on September 12, 2010 at 3:49pmOooh, a special treat for our favorite D-Bag,…cleaning out the colostomy bag! I thought you grounded danglingbags for wetting his bed?!?!
Report Post »Joseph
Posted on September 12, 2010 at 6:40pmI saw him burning ants with WD/40 and screeming “Heil Hit…AhhhObama!”
Report Post »Skwerl
Posted on September 12, 2010 at 3:36pmI don’t care what you do in the privacy of your own life. If you are good at what you do and choose to serve this country you have my support.
Report Post »danglingbags
Posted on September 12, 2010 at 3:36pmDiscrimination is wrong and we need to end DADT as soon as possible.
Report Post »Flagwaver
Posted on September 12, 2010 at 3:41pmDADT is not discrimination. I want to hear as much about your sex life as you want to hear about mine. It has nothing to do with discrimination.
I could be kicked out of the military for standing in the middle of a dining facility and yelling that I am heterosexual as much as someone yelling they are homosexual. It just means that I won‘t ask you your orientation and you won’t tell me your orientation and we can get along just fine.
Unfortunately, all people associate it with is the homosexual aspect.
Report Post »broker0101
Posted on September 12, 2010 at 3:42pmDiscrimination is wrong. Unless it involves saddling those making over $250,000 with confiscatory tax rates. Then discrimination is right as rain.
Report Post »Danglingbags Daddy
Posted on September 12, 2010 at 3:45pmThere you are you little p!ssant! Did you mow the lawn yet?????
Go get me another Natty Light and take the trash out while your at it.
yankee03
Posted on September 12, 2010 at 5:45pmWhy does everyone have trouble with the military being a strict and harsh profession-, a very simple solution, “dont ask dont tell” made room for gays to serve their country. She knew the rules when she enlisted, it is painfully simple to understand, yet these gay servicemebers feel they can change the regulations by going to the courts. She is lucky she isn’t in confinment (her commanders have wide pwers to preserve “good order and discipline” in the service. Just because the Services havent slammed someone or executed any traitors lately doesnt mean it is time to open the door to what any individual wants. Who cares if she or anyone is gay. In the military however Good Order and Discipline is critical for victory. Just because we are not so pressed by our enemies we spend useless hours going over this, but if the perception of Good Order is failing, commanders must keep it in order, It is not new, not surprising and just because some Euro country or Isreal (who is at full war everyday since 1947, they need everyone to serve) allows gays to be open, who are they?? They are merely role palyers in any future conflicts and if at the small uinit level there is a conflict, the gay loses. Life is harsh in the military, and harsher in combat. No one needs these kinda of distractions, we dont need open gays any more than we need open womanizers, or porno freaks or any individualism at all in OUR Military. We are the only super power for a good reason, we have the best military in human history. The military is a team effort, not a individual display of anything.
Report Post »She needs to be lucky she isnt reapying the USAF for her education and trainng costs and serving at Levenworth. Not because she is gay, but because she is distracting the USAF from is war efforts, If we allowed every individual to sue the service for their “rights” (which in the contract they agree to serve w/o a few inallienable rights) the services would be bogged down with usless lawsuits. DOD needs to redraw the line of “Good order and DIscipline and give her the boot she and other deserve.
GatorPwn
Posted on September 12, 2010 at 5:52pmDanglingBags is a troll and needs to get banned. uɐq uɐq uɐq uɐq uɐq uɐq uɐq ban
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