New Scrutiny For "Don't Ask, Don't Tell"

Federal Appeals Court Rejects Automatic Dismissal Of Openly Gay Service Members

(AP)  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 sexual orientation of service members but requires discharge of those who acknowledge being gay or engaging in homosexual 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 sexual 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 Washington 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 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.

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 homosexuals, the government must advance an important governmental interest ... and the intrusion must be necessary to further that interest," wrote Judge Ronald M. Gould.

One of the judges, William C. Canby Jr., issued a partial dissent, saying that the ruling didn't go far enough. He argued that the Air Force should have to show that the policy itself "is necessary to serve a compelling governmental interest and that it sweeps no more broadly than necessary."

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 support of the U.S. invasion of Afghanistan.

A citation from President Bush that year said, "Her airmanship and courage directly contributed to the successful accomplishment of important 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 sexual orientation. They were just glad to see me there."

[utah2010]

"Of course, people are not born gay. It is the parents that do not take the time to build the confidents a child needs for their future and the future of their children%u2019s.
I remember being in the military 24/7; my private life was my professional life. Always ready for that 3 AM call for duty. It was my country, my family then my religion.
It does not matter how highly educated a person is, are they stable enough to handle the job without breaking down like a baby." -krotec54

Yes, I''m sure. Because every gay person fits stereotypes perfectly, just like different races and genders do.
/sarcasm

[krotec54]

It has been proven that homosexual individuals are unstable and has no confidents of being the *** they are born. Our world needs stable individuals to accomplish the role that they are born to be.
Of course, people are not born gay. It is the parents that do not take the time to build the confidents a child needs for their future and the future of their children%u2019s.
I remember being in the military 24/7; my private life was my professional life. Always ready for that 3 AM call for duty. It was my country, my family then my religion.
It does not matter how highly educated a person is, are they stable enough to handle the job without breaking down like a baby.

[rafterman1]

===Don''''t ask, don''''t tell was and is a bad idea. Just let *** serve openly and be done with the whole thing.===
Posted by SgtRDS-E4

Ironically, many of these gay people being kicked out are "critical", language translators and such. The military has a serious shortage of these highly educated people and there are people in this country who are so homophobic that they would rather leave the country''s security at risk than let a gay person serve.

[psk123-2009]

First off, Thank you Maj. Witt for serving.

Personally I don''t care which way a person''s door swings, or what side of the plate they prefer to eat from. I am greatful to everyone that serves in our armed forces. They are the people that protect this nation and its people, whether that is keeping enemies at bay or helping after a natural disaster.

We enjoy some pretty wonderful rights and privleges due to the sacrafice of our men and women in military service.

[killface7]

I am glad to see sensible people agree that *** should openly serve and live their lives. Not special rights, equal rights. Thank God! You that disagree, go join the Taliban and the Mullahs, and throw stones at each other for transgressions.

[ioweign]

Don''t ask, don''t tell was and is a bad idea. Just let *** serve openly and be done with the whole thing.

Posted by SgtRDS-E4 at 01:09 PM : May 22, 2008


You do not have to be straight to shoot straight...

[redbds]

This is totally unacceptable. The military needs to get over it''''s discrimination. Who died and made them God and if she is doing a good job it does not matter who she sleeps with. does this affect her nursing??? If sleeping with the wrong one is a military issue there Is another big flaw in the system. Who cares ?????????????? did the ones she save care??? Did the ones she nursed care???? If I am in need of nursing I don;t give a *** who she loves as long as she cares for me and treats me. sounds like she is one of the best. Grow up you jerks!!!!!!!!!!!!!!


--------------------------------------------------------------------------------

Posted by suecostarn at 04:08 PM : May 22, 2008

I totally agree with you. However, I must point out that sexual orientation is not a basis for discrimination. So technically it is not discrimination.

[suecostarn]

This is totally unacceptable. The military needs to get over it''s discrimination. Who died and made them God and if she is doing a good job it does not matter who she sleeps with. does this affect her nursing??? If sleeping with the wrong one is a military issue there Is another big flaw in the system. Who cares ?????????????? did the ones she save care??? Did the ones she nursed care???? If I am in need of nursing I don;t give a *** who she loves as long as she cares for me and treats me. sounds like she is one of the best. Grow up you jerks!!!!!!!!!!!!!!

[msay3]

Remember when homosexuals used to just want to be left alone to do their thing in their own bedrooms?

Now they are attempting to overturn society with their desperate craving for mainline acceptance of their proclivities.

It''''s like "Invasion of the Body Snatchers" only worse.


Posted by dowell100 at 01:51 PM : May 22, 2008

At least they can''t procreate!

[redbds]

What a mess. Don''t ask, don''t tell.... is a waste of time. There are *** in the military. There have always been *** in the military. The fact that they are gay shouldn''t have any impact on whether or not they are allowed to serve. I don''t think that it has any impact on morale, unless you have a unit full of homophobes. It is time to kill this policy.

But on the other side of the issue, I am tired of the gay community trying to push their "homosexualization of American society" agenda on the rest of us. Homosexuality is still not as main steam as they want us to believe it is. You can''t even watch a television program these days that doesn''t have a gay character in it.

[buttonjockey]

Why is it that the AF can ascertain that someone is gay (yet still a valuable serviceperson), go after them and spend all kinds of taxpayer money doing it ...

BUT we can''t find out who phone scammers like "Heather" at "Account Services" is and shut them down.

[avigil2]

Oh you moronic so-called Christian-following people. We aren''t living in biblical times. Being gay has nothing to do with the type of job you perform (unless you''re in the hair and fashion business). Why should you care who they sleep with? It''s very un-Christian like to be judgemental, hateful, spiteful and to talk ill of others. Get over it! Major Witt SAVES LIVES! AMERICAN LIVES! We should be honoring her for her 18 years of service. Sheesh!

[bikerb54]

You know what, gopsoccermom, you have no sense at all. Feminists have nothing to do with straight or gay. They don''t hate men, they don''t turn them away, they only want equal rights, which they deserve. Anyway, before I get off on that rant (which you probably won''t understand either.) *** are born that way. No one "turns" any one gay. I''m glad I''m not one of your children cause we''d bump heads alot. God bless your children and hope someday they get out in the world and learn reality.

Go back to your narrow little world and let the rest of the human race live for themselves and when you realize what God''s words mean, I hope I meet you in Heaven. I love and forgive and pray you can unclench your azz enough to let your brain get some much needed oxygen!

[culturechang]

Didn''t the law passed in the 90s make it clear on this? Did the US military think they could just ignore it?

[gopsoccermom]

bikerb54, no I would not do that for it would mean eternal damnation for me. Also I blame feminism for the entire mess! Those "liberated" feminists rejected those poor men and they had no place to turn.

[dowell100]

Remember when homosexuals used to just want to be left alone to do their thing in their own bedrooms?

Now they are attempting to overturn society with their desperate craving for mainline acceptance of their proclivities.

It''s like "Invasion of the Body Snatchers" only worse.

[sgtrds-e4]

Don''t ask, don''t tell was and is a bad idea. Just let *** serve openly and be done with the whole thing.

[obamasgranny]

That''s what Obama told Larry Sinclair!! "Don''t ask,...and PLEASE don''t tell!!"

[randynason]

There is nothing "Christian" about being an intollerant bigot. I find the concept of organized/puritanical religion to be more offensive than who someone else is having *** with, personally. Who are these "God-fearing" people to tell you how to be, anyway?

[rf35]

What I want to know is who was watching her in her bedroom? If the Air Force received a tip, there must have been a credible eye-witness to the homosexual acts. The peeping tom who reported this should also be booted from the service for watching people have seks.

Personally, I don''t care what my troops, superiors, or peers do in the privacy of their own bedrooms. When I was in Iraq, I could not have cared less if the guy in the shower next to me was gay, straight, or bi. If he was standing there staring at me and waiting for me to drop the soap, then I would have a problem, but that just doesn''t happen. As far as the idea of creating "sexual tension," better get the women out of the services...the cute ones could be distracting men from doing their jobs. Except the gay ones, of course.