Update: The U.S. Court of Appeals for the Ninth Circuit in December 2008 rejected the government's request to reconsider its ruling that reinstated a lawsuit challenging the dismissal of Major Margaret Witt, a decorated U.S. Air Force flight nurse, on grounds that she engaged in homosexual conduct. The case was remanded to the U.S. District Court in Tacoma, with a trial scheduled for September 13, 2010 on the issue of whether Major Witt's presence in her unit is harmful to unit cohesion. ___________
May 21, 2008
The U.S. Court of Appeals for the Ninth Circuit in May 2008 reinstated a lawsuit challenging the dismissal of Major Margaret Witt, a decorated U.S. Air Force flight nurse, on grounds that she engaged in homosexual conduct. The ACLU is representing Major Witt in appealing a lower court ruling that rejected the suit in July 2006.
The Court of Appeals ruled that the Air Force must prove that discharging Major Witt is necessary for purposes of military readiness. While the ruling leaves in place the military's "Don't ask, don't tell" policy, the court found that before discharging a soldier, the military must prove that the individual's conduct actually hurt morale or jeopardized another government interest. The government has decided not to appeal to the U.S. Supreme Court, and the case now goes to federal district court to be considered under the appellate court's standard of review.
"Major Margaret Witt has been an exemplary member of the military with a distinguished record of service. To discharge her simply because of her sexual orientation is unfair to her and also is unwise for the military, which needs her skills," said ACLU of Washington Executive Director Kathleen Taylor.
"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 have loved being in the military – my fellow airmen have been my family. I am proud of my career and want to continue doing my job," said Major Witt. "Wounded people never asked me about my sexual orientation. They were just glad to see me there," she added.
In reaching its ruling, the Court of Appeals said:
We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence [v. Texas], the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government's interest.
The Court emphasized that generalized or hypothetical assertions about the impact of gay and lesbian service members would not be sufficient. As the case goes forward, the trial court "must determine not whether [the policy requiring discharge of gay and lesbian service members] has some hypothetical, post hoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt."
A 1986 graduate of Pacific Lutheran University, Major Margaret Witt is a flight nurse and operating room nurse assigned to McChord Air Force Base near Tacoma. During her 19-year career in the Air Force, Major Witt has served in the Persian Gulf, has received many medals and commendations, and has always had superb evaluations from her superiors. In 1993, she was selected to be the "poster child" for the Air Force Nurse Corps recruitment flyer.
Major Witt served in Oman during Operation Enduring Freedom and received a medal from President Bush, who noted that she had delivered "outstanding medical care" to injured service members and that her "outstanding aerial accomplishments … reflect great credit upon herself and the United States Air Force." In 2003, Major Witt received another medal for saving the life of a Defense Department employee who collapsed aboard a government chartered flight from Bahrain.
From 1997 to 2003, Major Witt was in a committed relationship with another woman, a civilian. In the summer of 2004, Major Witt was notified that the Air Force had begun an investigation into an allegation that she had engaged in homosexual conduct. In November 2004, Major Witt was placed on unpaid leave and told she could no longer
participate in any military duties, pending formal separation proceedings. In March 2006, the Air Force informed Major Witt that she was being administratively discharged on grounds of homosexual conduct.
The lawsuit seeks to reverse the Air Force decision to discharge Major Witt, and to prevent it from otherwise hampering her military career. The military has provided no evidence that her sexual orientation or conduct has caused a problem in the performance of her military duties. To the contrary, the ACLU submitted declarations from military colleagues testifying that her forced absence is harmful to her unit's morale.
The Air Force Reserves has had a critical shortage of flight nurses. At the rank of Major, the Air Force Reserves as of April 4, 2006 had 121 vacancies for flight nurses.
Representing Major Witt are ACLU-WA Legal Director Sarah Dunne, with ACLU-WA cooperating attorneys James Lobsenz of Carney Badley Spellman and Aaron Caplan of Loyola Law School. In a previous ACLU case, Lobsenz represented Army Sgt. Perry Watkins, who challenged his dismissal from the military for being gay. In 1989, the U.S. Court of Appeals for the Ninth Circuit ruled that, as a matter of fairness, the Army could not discharge Watkins.