Federal court in Tacoma orders return of lesbian nurse's job

Maj. Margaret Witt won back her job with the Air Force on Friday in the latest in a series of setbacks for the federal government’s “don’t ask, don’t tell” policy.

The Air Force violated Witt’s constitutional rights when it fired her for homosexual conduct, U.S. District Court Judge Ronald B. Leighton ruled, adding she should be returned to her position as a flight nurse with the 446th Aeromedical Evacuation Squadron at Joint Base Lewis-McChord “as soon as it is practicable.”

“I’m elated,” Witt told reporters after court was adjourned. “I can’t wait to get back to my unit.”

Asked if she thought her victory would help the effort in Congress to repeal the law forbidding open homosexuality in the military, she said, “We can only hope.”

“If I helped one person, that’s terrific,” Witt said. “It means I’ve done my job.”

The Justice Department did not immediately comment on the ruling.

On Sept. 9, a federal judge in California ruled “don’t ask, don’t tell” is unconstitutional. President Barack Obama campaigned against the law and wants it repealed. The U.S. House passed an amendment repealing it in May, but last week a similar amendment failed in the Senate.

Before releasing his decision Friday, Leighton, an appointee of President George W. Bush, said he regretted being in a position to make military policy, a function he said was far more appropriate for Congress.

But his ruling amounted to an eloquent argument for gay rights in the military, and his reading of it left many members of the audience with wet eyes.

Most of the approximately 50 audience members were Witt supporters. The Justice Department attorneys who represented the Air Force in the case flew back to Washington, D.C., after closing arguments Tuesday. They listened in on Leighton’s reading by telephone and made no response.

Witt was suspended from the Air Force in 2004 after she was outed by the husband of a Spokane woman – a civilian – whom she had begun seeing romantically. Witt subsequently sued the Air Force, saying her constitutional rights had been violated.

Leighton originally dismissed Witt’s lawsuit, but the Ninth Circuit Court of Appeals in San Francisco overruled his decision in 2008.

In an opinion that has become known as “the Witt Standard,” the appellate court said it was not enough for the government to establish that open homosexuality, in general, compromises military readiness and “unit cohesion.”

Instead, the appellate court said, the government had to establish that Witt’s conduct, in particular, had those effects.

The government failed to do that, Leighton said, and he concluded the Air Force violated Witt’s substantive due-process rights guaranteed in the Fifth Amendment.

“The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion,” Leighton said in his decision.

“To the contrary,” he said, “the actions taken against Maj. Witt had the opposite effect.”

Leighton noted that several members of the 446th are known or suspected of being gay or lesbian, yet it is an effective and highly motivated unit.

“These people train together, fly together, care for patients together, deploy together,” Leighton said.

“There is nothing in the record before this court suggesting that sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds,” he wrote.

Leighton spent about 30 minutes reading his decision in a clear manner and when he addressed Witt personally, he had to pause more than once to keep his emotions under control.

Leighton complimented Witt on her exemplary service in the Air Force and said her personal example provided the best evidence that being a gay man or a lesbian does not diminish one’s ability to serve.

Leighton recalled that, during the trial, Witt said her dismissal forced her to come out to her parents and that their loving response had been “the best thing to come out of all this turmoil.”

He choked up when recounting that exchange and told Witt she was “truly blessed as a family, and I am sure they will see you through whatever obstacles and difficulties you may encounter along the road ahead.”

Witt’s parents sat behind her throughout the trial.

After Leighton dismissed the court, Witt’s supporters burst into applause and rushed to congratulate her. Witt hugged her attorneys, her parents and friends.

She called the U.S. military “the most diverse work force in the world” and said military members would have little trouble adapting to openly serving gay and lesbian members.

“Wounded personnel never asked me about my sexual orientation,” she said. “They were just glad to see me.”

Witt’s father, Frank Witt, of Gig Harbor, quickly got tears in his eyes when pinned down by television cameras and microphones after the trial.

“I cry too easily, he said. “She’s courageous and dedicated. She’s trying to be the best she can be. I’m very proud.”

Lt. Col. Victor Fehrenbach, a gay F-15E fighter pilot who is fighting his own discharge battle with the Air Force, sat in the front row of the courtroom Friday, next to Witt’s partner, Laurie McChesney.

Fehrenbach, assigned to Mountain Home Air Force Base in Idaho, said he was greatly encouraged by Leighton’s decision.

“I’m on deck, ready to go,” he said. “This solidifies it. It helps my case a great deal, since it sets a precedent.”

Some legal observers predict Witt’s success will open the floodgates for more litigation against the military by others discharged for homosexuality.

James Lobsenz, one of Witt’s attorneys, said he does not believe that will happen.

“Every case is going to have to be looked at individually,” he said.

“I’d like to think the fight is over,” Lobsenz said, “but we know it’s not.”

Rob Carson: 253-597-8693 This e-mail address is being protected from spambots. You need JavaScript enabled to view it