US Appeals
Lesbian’s Reinstatement to AF
November
24, 2010
Associated
Press
U.S. District Judge Ronald Leighton ruled in September that
former Maj. Margaret Witt must be reinstated because her dismissal advanced no
legitimate military goals and thus violated her constitutional rights. The Justice Department appealed that ruling to the 9th U.S.
Circuit Court of Appeals on Tuesday, its deadline for doing so. But government lawyers did not ask the appeals judges to
freeze the lower court's ruling while the appeal proceeds -- and Witt's lawyers
said that means she can be reinstated. "I am
thrilled to be able to serve in the Air Force again," Witt said in a
written statement released by the American Civil Liberties Union of Washington
state. "The men and women in the unit are like family members to me, and
I've been waiting a long time to rejoin them." Witt was suspended in 2004 and subsequently discharged
after the Air Force learned she had been in a long-term relationship with a
civilian woman. She sued to get her job back. Leighton initially upheld her firing, but in 2008 a three-judge
9th Circuit panel said military members could not be discharged under
"don't ask" unless their dismissal furthered military goals such as
troop morale or unit cohesion. It sent the case back to Leighton, who ruled
that Witt's firing actually hurt morale in her unit. If Witt is reinstated, she would be serving openly at a
time when the military's policy on gays is in disarray. President Obama and
Defense Secretary Robert Gates want to end the ban, but say it should be done
through Congress, not the courts. A federal judge in California has declared
the 1993 "don't ask, don't tell" law unconstitutional -- a ruling the
Justice Department is also appealing -- and in the meantime, the Pentagon has
issued new guidelines that have drastically cut the numbers of gays being
dismissed under the policy. The Pentagon plans to release a monthslong study Nov. 30 on
how lifting the gay service ban would affect the armed forces. The Justice Department did not immediately say why it did
not seek a stay of Leighton's ruling. The Air Force Reserve at Joint Base
Lewis-McChord south of Seattle, where Witt was based, did not immediately
return a message seeking comment. "It's indicative of the effort the White House is
making to thread the needle on 'don't ask, don't tell,' " said Chris Neff,
deputy executive director of the Palm Center, a pro-repeal think tank based at
the University of California, Santa Barbara. "They're holding the line
that they need to continue to appeal these, but they are taking an extra
measure to address this policy and try to make it moot. This is the first White
House that has really made an effort to keep gays in the military." Despite being excited to rejoin the Air Force, Witt said
she was disappointed the government was appealing at all. Justice Department spokeswoman Tracy Schmaler said the
department was simply defending the law, as it historically does when acts of
Congress are challenged. White House Press Secretary Robert Gibbs insisted that
the appeal shows why it's important for the Senate to repeal the
"misguided policy" quickly -- before a new Congress takes over, with
a slimmer Democratic majority in the Senate. "This
filing in no way diminishes the president's -- and his administration's -- firm
commitment to achieving a legislative repeal of DADT this year," Gibbs
said in an e-mailed statement. "Don't ask" prohibits the military from asking
about the sexual orientation of servicemembers, but allows the discharge of
those who acknowledge being gay or are discovered to be engaging in homosexual
activity.