Judge: Reinstate Witt to Air Force

BY Michelle Garcia

September 24 2010 4:25 PM ET

A federal judge ruled Friday to have former Air Force major Margaret Witt reinstated to her job after she was discharged under "don't ask, don't tell."

U.S. district judge Ronald B. Leighton ordered that she be given her job as a flight nurse back as soon as possible. She was working at McChord Air Force Base near Tacoma, Wash.

"I'm thrilled about the decision today," Witt said in a statement following the ruling. "I appreciate the Court's belief in the professionalism of the military. Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaptation. Thousands of men and women who are gay and lesbian honorably serve this country in our military. Wounded personnel never asked me about my sexual orientation. They were just glad to see me. I can't wait to rejoin my unit."

Leighton originally rejected former Witt's claim that her rights were violated when she was discharged under "don't ask, don't tell" in 2006. Two years later, an appeals court rejected his ruling, sending the case back to Leighton. The appeal said the military can't use sexual orientation for  grounds for firing unless it can prove the dismissal was necessary to further military goals. Leighton had to evaluate whether Witt's firing was valid on those grounds.

"The application of 'don't ask, don’t tell' to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion," Leighton wrote Friday. "Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution."

Witt graduated from Pacific Lutheran University in 1986. She served in the Persian Gulf, has received many medals and commendations, and has always had superb evaluations from her superiors in nearly two decades of service, according to a statement from the American Civil Liberties Union of Washington State, which represented Witt. James Lobsenz of Carney Badley Spellman and Aaron Caplan of Loyola Law School also were on her legal team.

Witt also served in Operation Enduring Freedom, for which she received a medal from President George W. Bush, commending her "outstanding medical care" to injured service members. 

James Esseks, ACLU's LGBT project director, said the decision shows that public opinion on gay rights is quickly shifting in a progressive direction.

"We’ll see whether the government appeals this case because they can if they want to," he told The Advocate. "We hope that they will just let this go because it’s clear, as the judge said, she’s a valued member of society. The wounded soldiers she was helping didn’t care about her sexual orientation. If they do [appeal], I’m confident that this ruling will be affirmed by the appeals court."

"Yet another judge has taken yet another righteous, historic, and courageous stand against a discriminatory and unconstitutional law," Alexander Nicholson, founder and executive director of Servicemembers United, said in a statement. "Major Witt's case is a clear-cut one in which her discharge itself actually harmed unit cohesion, morale, and combat readiness."

Witt, whose case was heard in Tacoma, is involved in one of two ongoing legal challenges in the federal courts over "don't ask, don't tell." Thursday the Department of Justice asked U.S. district court judge Virginia Phillips, who ruled September 9 that "don't ask, don't tell" is unconstitutional, to keep the law in effect so Congress may repeal the ban. However, the U.S. Senate failed to advance a bill containing language that would have repealed "don't ask, don't tell."

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