Gays in the U.S. Military - Don't Ask, Don't Tell (DADT) policy
2010-SEP: Major Margaret Witt's lawsuit
Washington State federal district court
Major Margaret Witt, a decorated Air Force officer, served in the McChord Air Force Base aeromedical evacuation squadron. She is believed to have been discharged in 2004 1 (although some sources suggest 2006 2,4 or 2007 5) under the military's "Don't Ask, Don't Tell" (DADT) policy. The loving relationship that she had with a civilian woman had been reported by her superior officers by her partner's ex-husband. She had served as a flight nurse for 19 years, and was fired less than a year short of being eligible for a full pension.
Major Witt launched a lawsuit during 2008 1 in federal District Court for the State of Washington, seeking to be reinstated. Major Witt was represented by the American Civil Liberties Union of Washington. She lost the case, but appealed it to the 9th Circuit Court of Appeals -- a court that covers appeals from the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam, and the Commonwealth of the Northern Mariana Islands. A panel of judges from the appeals court ruled in 2008 that the military cannot discharge a servicemember under their DADT policy unless it can first demonstrate that the individual's firing is needed to further military goals such as military readiness or unit cohesion. To do otherwise would be unconstitutional. The panel then returned the case to the federal district court in Tacoma, WA where U.S. District Judge Ronald Leighton heard her case on 2010-SEP-13.
This ruling by the appeals court only affects DADT lawsuits in nine states, Guam and Northern Mariana Islands. However it may influence other Circuit Courts of Appeals to make similar readings.
More than a dozen of her colleagues gave sworn declarations objecting to her dismissal.
The News Tribune of Tacoma, WA, reported that all of the witnesses on 2010-SEP-13:
"... characterized the 'don’t ask, don’t tell' policy as out of touch with current military attitudes. Sexual orientation is a matter of interest among military members, they said, but in the work environment it is almost always irrelevant, even under conditions where they sleep inches apart and share toilets and showers with little or no privacy.
" 'It’s not important to me,' said Lt. Col. Vincent Oda, an Air Force medical standards evaluator with the 446th at McChord."
"After Witt was suspended in 2004, Oda said, morale at the 446th went down."
" 'The consensus was, who cared?' about her sexual orientation, Oda said. 'We were at war; we were short-staffed. It was the loss of an able flight nurse'."
Retired Air Force Master Sergeant James Schaffer, who is now a Spokane Fire Department captain, said he flew hundreds of missions with Witt and never observed anybody who had a problem working with her, even though it was widely known that she is a lesbian.
“I thought more of her because she was honest about it, instead of lying,” Schaffer said. “It’s not about what you are, but who you are.
Retired Master Sgt. James Sachaffer testified that Witt was exceedingly competent and that her dismissal was unfair. This was part of the reason why he retired in 2007 instead of re-enlisting. He said: "It was a rather dishonorable act on the part of the Air Force. It should not be about what you are, but who you are." 4,5
Lawyer Peter Phipps from the Justice Department noted that, over time, Witt had engaged in relationships with one civilian woman, two fellow servicewomen, and had had an affair with a married woman. He said:
"By committing adultery, she compromised her integrity and her ability to lead. Plaintiff set an example of a disregard for Air Force policies."
His assertion appears to be incorrect. Major Witt cannot have committed adultery because:
- Only married persons can commit adultery, and Witt is not married.
- Adultery requires penile penetration which is clearly impossible for the plaintiff.
On 2010-SEP-24, District Judge Ronald Leighton ruled that the DADT policy was unconstitutional in her case. It had intruded excessively upon Major Witt's rights under the due process clause of the Fifth Amendment of the U.S. Constitution. That would only be allowed if there were a major government interest involved. He wrote:
"The Court concludes that ['Don't Ask, Don't Tell'], when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. ... Major Witt’s approach to the fact-finding mission of this Court was to present testimony of members and former members of her unit ... who testified persuasively that serving with Margaret Witt and other known or suspected gay and lesbian service members did not adversely affect unit morale and cohesion. To the contrary, it was Major Witt’s suspension and ultimate discharge that caused a loss of morale throughout the squadron." 2
District Judge Leighton came to the same conclusion as did U.S. District Judge Virginia Phillips in California: that no such government interest exists to justify the application of the DADT policy. He ruled that she must be given her job back as soon as possible. However, District Judge Leighton's ruling was restricted to this one plaintiff. He did not declare the entire DADT policy itself unconstitutional as District Judge Phillips did.
Major Witt said that she is:
"... thrilled [with the decision and she} appreciate[s] 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 adapting. 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."
Doug NeJaime, a gay law professor at Loyola Law School, said that the court’s decision sets:
"... a really good precedent for potential other discharges. ... The Justice Department is in a difficult position, and you would think that since this only applies to Maj. Witt, it might make sense not to see this any further and just let things end here, which, I think, is probably what we’re going to see happen." 2
Impact on the Obama administration:
This puts the Obama administration in a bind:
- President Obama has repeatedly agreed with senior military leadership that the DADT policy must be repealed because it is discriminatory. Similar policies have been abandoned by all of the other countries in NATO, except for Turkey, with few problems.
- A very strong majority of the American public supports the abolition of DADT.
- His administration has an obligation to defend DADT when challenged in court because it was introduced in the 1990's by an act of Congress and remains on the books.
- The attempt by his administration to phase out DADT failed during 2010-SEP. If the act had been passed, and if the current Defense Department review of the policy that is scheduled to be completed in 2010-DEC shows that it can be terminated without adverse effects on the military, then the president would have had the authority to terminate DADT.
Current public support for the abolition of DADT:
ABC News/Washington Post polls have shown an increase in support for the abolition of the DADT poll. During 2010-FEB, 75% of American adults supported the principle that lesbians, gays and bisexuals should be able to serve openly in the military. This is a major increase from 44% in a poll taken 17 years ago when DADT was first implemented. The pollsters found that among American adults:
- 64 percent of Republicans,
- 61 percent of those who consider themselves to be conservatives, and
- 58 percent of white evangelical Protestants
favor an end to the DADT policy. This indicates that fundamentalist parachurch groups, other evangelical groups, and the Republican Party are all out of touch with their own membership. Otherwise they would have supported the bill to abolish DADT in the Senate. 3
Support for an end of DADT is much higher in less conservative groups.
Postings to a News Tribune article:
Readers of an article in the News Tribune of Tacoma, WA for 2010-SEP-24 posted a total of 19 comments. Two of the most representative were:
- MOGVET: " 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness'."
"Unless you are gay."
"We are promoting and dying for democracy beyond our own borders yet treat our American citizens like this.
This is a national disgrace and history will condemn this policy and those who promoted it. There has not been a more appropriate time to protest this type of discrimination since 1964."
- DubyaFTW: "Why do normal people feel the need to accept this nonsense? If you need any more proof that gays in the military are disruptive, just read any of a hundred stories like this one. Political correctness is nothing more than censorship forced on normal Americans to make them shut up and take whatever uncomfortable, unacceptable conditions these fringe groups want to force on us. It's time to get real and quit managing our lives according to what will or will not offend hypersensitive minority groups. The rest of us are offended daily by the regular assault on common decency by these groups, so let's just call it even and drop the BS. Throw out the human resources industry, who's sole reason for existing is to punish normal people and creates a huge economic burden on businesses across the country. Throw out politicians who pander to every fringe group hoping to create a conflicting conglomeration of disparate groups (impossible to satisfy) that have now hijacked the Democrat party." 6
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- Ariane de Vogue & Devin Dwyer, "Judge Rules Firing of Lesbian Under 'Don't Ask Don't Tell' Unconstitutional," ABC News, 2010-SEP-24, at: http://abcnews.go.com
- Chris Johnson, "Wash. court rules to reinstate lesbian officer," Washington Blade, 2010-SEP-25, at: http://www.washingtonblade.com
- Mike Mokrzycki, "Support for Gays in the Military Crosses Ideological, Party Lines," ABC News, 2010-FEB-12, at: http://abcnews.go.com/
- "Welcome -- but insufficient -- relief from 'don't ask'," The News Tribune, Tacoma, WA, 2010-AUG-25, at: http://www.thenewstribune.com
- Gene Johnson, "Former colleagues testify for lesbian flight nurse," Associated Press, 2010-SEP-13, at: http://www.thenewstribune.com/
- Rob Carson, "Air Force nurse's homosexuality not a factor, witnesses say," The News Tribune, 2010-SEP-14, at: http://www.thenewstribune.com/
Copyright © 2010 by Ontario Consultants on
Originally written: 2010-SEP-25
Latest update: 2010-SEP-26
Author: B.A. Robinson