Judge Orders Witt To Be Reinstated

Posted by Chris Geidner
September 24, 2010 5:15 PM |


Photo: Former Air Force Major Margaret Witt, Washington National Guard Col. Margarethe Cammermeyer (Ret.) and Air Force Lt. Col. Victor Fehrenbach in March 2010 at the annual dinner held by Servicemembers Legal Defense Network. (Photo by Chris Geidner.)

Air Force Reserve Major Margaret Witt -- discharged under the military's "Don't Ask, Don't Tell" policy -- has won reinstatement in her case challenging that dismissal.

U.S. District Judge Ronald Leighton ruled on Friday afternoon that the discharge of Witt under DADT violated her constitutional rights. He wrote:

[T]he Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and  cohesion. If DADT does not significantly further an important government interest ... it cannot be necessary to further that interest .... Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.  She should be reinstated at the earliest possible moment.

As noted by the Seattle Times, the decision "marks the first time since Congress approved the policy in 1993 that a federal judge has ordered the military to allow an openly gay service member to serve in the armed forces."

Today's decision came about following a hearing conducted earlier this month by Leighton that resulted from an earlier decision in Witt's case by the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, Witt's lawyers argued and the judge agreed, ordered a more individualized inquiry into whether her particular discharge would advance the government's claimed justifications for the continued enforcement of DADT.

The news came just hours after 69 members of the U.S. House of Representatives cited Witt's case as an example of the damage done to the military because of DADT. In a letter urging President Obama not to appeal another case in which the judge struck down DADT as unconstitutional, the members of Congress noted that "Air Force Reserve Major Margaret Witt is one of those talented defenders of peace who has suffered at the hand of the DADT policy."

The Seattle Times noted that Judge Leighton, in his ruling, agreed:

"Good flight nurses are hard to find," said Leighton, who found that the evidence presented at the trial showed Witt's reinstatement "... would not adversely affect unit morale or cohesion" in her unit. 

The judge also hailed Witt for her role "... in a long-term, highly-charged civil rights movement. Today, you have won a victory in that struggle."

Alex Nicholson, the head of Servicemembers United, was quick to praise the ruling.

"Yet another judge has taken yet another righteous, historic, and courageous stand against a discriminatory and unconstitutional law," he said in a statement. "Major Witt's case is a clear-cut one in which her discharge itself actually harmed unit cohesion, morale, and combat readiness."

The Human Rights Campaign, however, focused on the fact that the individualized inquiry ordered by the U.S. Court of Appeals for the Ninth Circuit in Witt's case only applies in that circuit. In the rest of the country, no individualized showing is required.

HRC President Joe Solmonese said in a statement, "Had Major Witt been discharged in any other circuit in the country, she would not had her day in court.  It is time for Congress and the Administration to recognize that his failed law should be removed from the books once and for all."

The White House directed questions about the ruling to the Department of Justice.

Aubrey Sarvis, the head of Servicemembers Legal Defense Network, also pushed for Senate action to repeal DADT in his statement.

"It is only a matter of time before this happens throughout the armed forces, but these cases are slowly working their way through the legal process and it could well be years before there is finality in the courts," he said. "The favorable Witt decision, like the Log Cabin Republicans ruling, only underscores the urgent need for the Senate to take up repeal in the lame duck session."

Read the ruling here: Witt.pdf

[Thanks to the Think Progress Wonk Room for providing the ruling.]

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