http://www.newsmax.com/us/military_gays/2008/05/21/97977.html
Federal Court Rules Against Military Gays Policy
Wednesday, May 21, 2008
SEATTLE -- The military cannot automatically discharge people because
they're gay, a federal appeals court ruled Wednesday in the case of a
decorated flight nurse who sued the Air Force over her dismissal.
The three judges from the 9th U.S. Circuit Court of Appeals did not
strike down the military's "don't ask, don't tell" policy. But they
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 ***ual orientation of
service members but requires discharge of those who acknowledge being
gay or engaging in homo***ual activity.
Wednesday's ruling led opponents of the policy to declare its days
numbered. It is also the first appeals court ruling in the country
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 ***ual
tension.
But 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.
Under Wednesday's ruling, military officials "need to prove that
having this particular gay person in the unit really hurts morale, and
the only way to improve morale is to discharge this person," said
Aaron Caplan, a staff attorney with the American Civil Liberties Union
of Wa****ngton state who worked on the case.
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 long-term relation****p 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.
She sued the Air Force in 2006, but U.S. District Judge Ronald B.
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 appeals court judges disagreed.
"When the government attempts to intrude upon the personal and private
lives of homo***uals, the government must advance an im****tant
governmental interest ... and the intrusion must be necessary to
further that interest," wrote Judge Ronald M. Gould.
Gay service members who are discharged can sue in federal court, and
if the military doesn't prove it had a good reason for the dismissal,
the cases will go forward, Caplan said.
Another attorney for Witt, James Lobsenz, hailed the ruling as the
beginning of the end for "don't ask, don't tell."
"If the various branches of the Armed Forces have to start proving
each application of the policy makes sense, then it's not going to be
only Maj. Witt who's going to win," Lobsenz said. "Eventually, they're
going to say, 'This is dumb. ... It's time to scrap the policy.'"
An Air Force spokeswoman said she had no comment on the decision and
directed inquiries to the Defense Department.
Lt. Col. Todd Vician, a Defense spokesman, said he did not know
specifics of the case and could not comment beyond noting that "the
DOD policy simply enacts the law as set forth by Congress."
Witt joined the Air Force in 1987 and switched from active duty to the
reserves in 1995. She cared for injured patients on military flights
and in operating rooms. She was promoted to major in 1999, and she
deployed to Oman in 2003 in sup****t of the U.S. invasion of
Afghanistan.
A citation from President Bush that year said, "Her airman****p and
courage directly contributed to the successful accomplishment of
im****tant missions under extremely hazardous conditions."
Her suspension and discharge came during a shortage of flight nurses
and outraged many of her colleagues _ one of whom, a sergeant, retired
in protest.
"I am thrilled by the court's recognition that I can't be discharged
without proving that I was harmful to morale," Witt said in a
statement. "I am proud of my career and want to continue doing my job.
Wounded people never asked me about my ***ual orientation. They were
just glad to see me there."
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