HRC Blog

Court Says Air Force Nurse May Serve Openly; Impact of the Witt Decision

Major Margaret Witt is positioned to be the first lesbian service member to serve openly and without fear of discharge under “Don’t Ask, Don’t Tell” (DADT) after a district court ruling last Friday provided for her reinstatement.  The district court judge, Judge Ronald B. Leighton, was directed by the Ninth Circuit Court of Appeals to determine whether the specific application of DADT to Major Witt significantly furthered the government’s interest in promoting military readiness, unit morale and cohesion.  Judge Leighton found that the application of DADT to Major Margaret Witt did not further these interests. Instead, Judge Leighton found that Major Witt “was an exemplary officer” and “an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team.”  In fact, he found that “her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission” – which is counter to the very interests offered as justifications for DADT. In the decision, Judge Leighton also discusses the military’s ability to be effective while embracing diversity.  He says: “The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and treat them with the respect necessary to accomplish the mission, whatever that mission might be.  That ability has persistently allowed the armed forces of the United States to be the most professional, dedicated and effective military in the world.”

He also points out that the military has proven this “during the integration of blacks, other minorities and women into the armed forces.” This decision is the first time the “Witt standard” – which was created during earlier review of Major Witt’s case – has been applied by a district court.  Under the Witt standard, the military is required to demonstrate that each individual discharged under DADT has a negative impact on his/her unit because of his/her sexual orientation.  The Witt standard is only applicable in the Ninth Circuit, which includes Alaska, Hawaii, Arizona, Nevada, California, Oregon, Washington, Montana and Idaho.  As noted on Friday by HRC President Joe Solmonese,   “had Major Witt been discharged in any other circuit in the country, she would not have had her day in court.” Considering that the Justice Department declined to appeal the decision that led to the Witt standard, it is unlikely that it will contest Major Witt’s reinstatement. Last week, legislative repeal of DADT was blocked when partisan, Republican obstructionism prevented the Senate from considering the National Defense Authorization bill, to which DADT repeal legislation is attached. In addition, only two weeks ago, we saw a federal district court in the Ninth Circuit declare DADT unconstitutional.  Currently, that district court judge is determining if she will place a worldwide, military-wide injunction on the enforcement of DADT, a move the Justice Department fervently opposes. DADT litigation will only increase while DADT remains on the books.  The Administration is wasting valuable resources defending the failed law.  After learning of the decision allowing for Major Witt’s reinstatement on Friday, Solmonese stated “it is time for Congress and the Administration to recognize that his failed law should be removed from the books once and for all.”

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