The military
cannot automatically discharge people because they're gay, a
federal appeals court ruled in the case of a decorated
flight nurse who sued the Air Force over her
dismissal.
The three judges
from the ninth 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 the latest
ruling, military officials ''need to prove that having
this particular gay person in the unit really hurts morale,
and [that] 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,'' Judge
Ronald M. Gould wrote.
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 Major 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.'' (AP)
