Earlier this afternoon, in another blow to Don’t Ask, Don’t Tell, a federal district judge in Washington ruled that former Air Force Major Margaret Witt — who was discharged under the ban — should be reinstated to her job. Judge Ronald B. Leighton found that the policy “violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.” “She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable,” he concluded.
Leighton dismissed Witt’s case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent which prevented the military from discharging servicemembers under the policy in that circuit unless it could prove that it furthered military goals. The 9th Circuit sent the case back to Leighton and today he ruled that the government did not meet that burden of proof:
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. To the contrary, the actions taken against Major Witt had the opposite effect….. There is nothing in the record before this Court suggesting that the 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. […]
These surveys and polls are some evidence that there may be persons in the 44th AES who would prefer that gays and lesbians not serve openly within their unit but such preferences are not outcome determinative here. The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be. […]
Again, these polls are some evidence that some folks would prefer to not serve with admitted homosexuals. That such views may lead to a drop in recruitment or retention is a possibility, just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.
The Seattle Times notes that this is 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.”
“You have been and continue to be a central figure in a long-term, highly-charged civil rights movement,’ said Leighton, speaking directly to Witt. “That role places extraordinary stresses on you, I know. Today, you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon, the political branches of government.”
Read the full ruling HERE.