SEATTLE – The military cannot automatically discharge people because they are gay, a federal appeals court ruled yesterday in the case of a decorated flight nurse who sued the Air Force over her dismissal.
The 9th U.S. Circuit Court of Appeals did not strike down the military's “don't ask, don't tell” policy. It reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion.
The “don't ask, don't tell, don't pursue, don't harass” policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual activity.
This is the first appeals court ruling in the United States that evaluated the policy through the lens of a 2003 Supreme Court decision that struck down a Texas ban on sodomy as an unconstitutional intrusion on privacy.
When gay service members have sued over their dismissals, courts historically have accepted the military's argument that having gays in the service is generally bad for morale and can lead to sexual tension.
The Supreme Court's opinion in the Texas case changed the legal landscape, the judges said, and requires more scrutiny over whether “don't ask, don't tell” is constitutional as applied in individual cases.
Witt, a flight nurse based at McChord Air Force Base near Tacoma, was suspended without pay in 2004 after the Air Force received a tip that she had been in a relationship with a civilian woman. Witt was honorably discharged in October 2007 after having put in 18 years – two short of what she needed to receive retirement benefits.
Witt had sued the Air Force in 2006, but U.S. District Judge Ronald Leighton dismissed her claims, saying the Supreme Court's ruling in Lawrence v. Texas did not change the legality of “don't ask, don't tell.”
The three appeals court judges disagreed.
“When the government attempts to intrude upon the personal and private lives of homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest,” Judge Ronald Gould wrote.
“I am thrilled,” Witt said in a statement. “ ... Wounded people never asked me about my sexual orientation. They were just glad to see me there.”
