Margaret Witt’s day in court

May 22, 2008

Long-time readers may recall that I’ve been following the efforts of Air Force Maj. Margaret Witt, a poster woman for the Air Force’s flight nurse recruiting program, who excelled during a 19-year military career. In 2003, Witt was awarded the Air Medal for her Middle East deployment and, later, the Air Force Commendation Medal, for saving the life of a Defense Department worker.

Witt’s career ended, however, when she was drummed out of the Air Force for having a committed relationship with another woman, who was a civilian. In this case “Don’t Ask, Don’t Tell” barely applied — Witt didn’t “tell” the Pentagon, an anonymous tip prompted an investigation of her personal life.

Two years ago, with help from the ACLU, the highly decorated Air Force officer filed a federal lawsuit against the Pentagon, only to see her case thrown out of court by a Bush-appointed federal judge. Yesterday, the 9th Circuit threw Witt a life-preserver and reinstated her case.

Major Witt filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.

The decision was notable for the standard the appeals court instructed Judge Leighton to use in considering the case. The panel said judges considering cases claiming government intrusion into the private lives of gay men and lesbians must require the government to meet a heightened standard of scrutiny.

The usual standard is called “rational basis” review, which merely requires the government to offer a rational reason for a law or policy. The rationale offered by Congress for the “don’t ask, don’t tell” policy is that openly gay and lesbian service members threaten morale, discipline and unit cohesion. Several courts have sustained the policy as rational.

On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.

It’s a start.

Witt wants to use her 19 years of decorated service to treat injured troops who could no doubt benefit from her service during a time of war. She has sterling performance reviews and, in 1993, the Air Force literally used her photograph in brochures used to recruit nurses. But it doesn’t matter; her sexual orientation, according to the Pentagon, necessarily has to end her career.

And moving forward, a McCain administration wants to ensure that the policy that keeps Witt from serving stays exactly as it is, while an Obama administration would do the opposite.

For what it’s worth, Witt is encouraged by yesterday’s developments.

Witt welcomed the decision.

“I am thrilled by the court’s recognition that I can’t be discharged without proving that I was harmful to morale,” she said in a statement released by the American Civil Liberties Union of Washington state, which sued the Air Force on Witt’s behalf in 2006.

“I am proud of my career and want to continue doing my job,” said Witt, a flight nurse who according to the appeals court “was an outstanding Air Force officer” who received numerous commendations and medals.

“Wounded people never asked me about my sexual orientation,” Witt said in the statement. “They were just glad to see me there.”

The nation is indebted to heroes like Margaret Witt. She deserves better than discrimination.

May 22, 2008 at 10:26 am

I haven’t read the official policy, but I remember clearly that Bill Clinton called it “Don’t ask, don’t tell, don’t pursue.”

I consider investigation of anonymous tips to be pursuit. Is the Air Force following its own policy?

I hope that Barak Obama is making a list of stupid Bush Administration policies that he will overturn by executive order on the morning of January 21, 2009.

Criticism of Clinton’s “don’t ask don’t tell” policy is rampantly sexist.

I had a friend who was in the Air Force. She turned a guy down for a date, and he, knowing she was a lesbian, turned her in. She had to go through a whole investigation of her personal life. Luckily she managed to make it through, but once she had the opportunity to leave the military she took it. From what she told me, if you got rid of all of the gay people in the military, the military would definitely shrink. And don’t we need all the military that we can get right now?

In reply to #1:
I’ve never heard of the don’t pursue part. The policy, as I understand it, is that a Commander can not launch an investigation of a person’s sexuality without solid evidence.
In theory, solid evidence would constitute seeing somebody committing a homosexual act or, possibly, exiting a gay club (though I think the second one there might not qualify. I’d have to talk to JAG). A person saying that they think somebody else is gay should not qualify as solid evidence.
In reality, the solidity of the evidence is up to the discretion of the Commander and the JAG advising him, which leads to cases like this.

What a great use of my tax money. Investigating soldiers sexual preferences. That’s so much better than insuring kids.

“On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.

It’s a start.”

It’s a lot more than a start, actually. In cases where a statute or policy is challenged as violating the Constitution, determining which standard of review to apply is highly likely to determine the outcome. Almost any stupid or wrongful law can pass “rational basis” review, because the Court generally asks only if the Legislature COULD have believed that the law would accomplish some nominally worthwhile goal, without really inquiring into whether it does, in fact, advance that goal.

Once the standard is raised, the Court must ask whether the the intrusion into the plaintiff’s private life significantly advanced the important government interest supposedly at stake. Apart from the different descriptions employed, the most important part of this change is that now the Court is looking for concrete proof that the policy actually has the benefit claimed, and no longer defers to the Legislature’s unsupported claims. In other words, welcome to the reality-based community.

Intreresting side note: the California Supreme Court decision holding that civil unions were not an adequate substitute for gay marriage also adopted this heightened standard of scrutiny. It could turn out to be the most important part of the decision.

When I went through Basic Training in 1985, we were specifically warned against homosexual behavior by our training sergeants and the Captain of our training platoon. Homosexual conduct would not be tolerated in any way, shape, or form, the U.S. military had no place for it, and if any of us were caught ‘acting queer’ we would be immediately dishonorably discharged.

He went further than that, though. Just in case any of us thought that groping another guy in the shower would get us a ‘free pass home’ should we decide we’d made a mistake in enlisting, he wanted to assure us that while discharge would be automatic, the pass would be anything but free — he would personally make sure we did stockade time for misrepresenting ourselves on our enrollment application (at the time, enrolling in the military meant signing a statement that you were not homosexual, and taking an oath as to the truthfulness of everything on your application, both of which were considered legally binding), we would be fined of any pay we might have accumulated by that point (nobody ever has time to spend any of their pay in Basic, it all sits in the safe in the Captain’s office until you get out), and chances were pretty good we’d get our asses kicked by our platoon mates first… which would, he pretty strongly implied, be no more than what such behavior merited.

If you haven’t been there, it is virtually impossible to describe how toxically, murderously homophobic the military was back in the 1980s (and how insanely, virulently misogynistic as well; one of our drill sergeants confided in us that the day they let women serve next to him in combat was the day he’d give up his stripes and go back home to whittle, while another advised that putting women on the front lines of combat was an idea that, even if implemented, would never last, because ‘any woman in my defensive position who ain’t there to fuck me is gonna get fragged pretty goddam quick’).

I have a female cousin who went through Basic Training in the mid 90s. Her Basic was essentially co-ed and she ended up serving as an MP, and did a pretty good job, so at least as far as sexism is concerned, the service seems to have evolved quite a bit since ’85. And that’s really hard for me to believe, based on my own memories. So maybe it’s gotten better for gays, too… in fact, if gays are simply being discharged these days, and not beaten into bloody unconsciousness, I’d say it has gotten better. Obviously, though, there’s still a great deal of room for improvement… but apparently, there has been progress. I find that encouraging.

Being a Veteran I can tell this much. The only morale affected by gay services members comes form the people who can’t get over their own prejudices, so instead of disciplining the real culprits, they make gay people the convenient scape goats.

This is where we get “Don’t ask, don’t tell” or what it really means, you can be as gay as you want, but if it starts making people uncomfortable you are gone. Can you imagine this sort of policy used for anything serious ?

Almost all of the people who are ‘caught’ are really turned in by someone holding a grudge. So gay people not only have to live a secret life, they have to be in a constant state of making sure they don’t create enemies or slip up and tell some one their big bad secret.

It’s shameful.

I agree with retr2327 @6 – the big deal here is the increased level of scrutiny, moving up from “rational basis”. It will depend a lot on what other circuit courts of appeals do – not sure if there are other pending cases out there. The Air Force will likely appeal to the Supreme Court but in the interim other circuit courts could rule as well.

Doc Nebula – did you ask your sergeant if he meant flaming?

The USAF has turned into an evangelical crusade…yes, I said “crusade”. Their sworn oath to uphold the constitution is secondary. It’s frightening that this fanaticism is overwhelming at the highest levels. Why would someone be motivated to make such a big deal out of the Maj.’s “private” life which was not flaunted or used in anyway to promote a lifestyle, especially one as dedicated as Maj. Witt who brought a positive image to the force by her heroism?. Armageddon planners at the highest level of the AF is extremely frightening. Witt’s case is merely an example of the ideology that motivates these people.

btw***This is all about religion. Why would it make a bit of difference what one’s sexual preference is if they are doing their job and not pushing it off on others. However, pushing one’s religion off on others can be extremely irritating. “Don’t ask, don’t tell” should also apply to one’s religion as far as pushing one’s llifestyle off on others.

But it’s not really about the “law” or anything else but religion. Why should we allow religion to determine policy? Homosexuality should not even be an issue and wouldn’t be if it were not for “religious” beliefs. Greeks, Romans etc all included homosexuals in their armies without negative effects. America should not allow it’s policies to be determined by religion.

Put yourself in Maj Witt’s combat boots for a moment and let’s put the ‘gay’ thing aside – how would you react if you were being investigated, and in the meantime had been dishonorably discharged, lost your pension and any future job prospects? Point being, if the military decides an investigation is necessary, for whatever reason they deem it necessary, so be it. But, to publicly villify a soldier, take away her job and refuse to pay her the pension they promised, is unforgiveable. Maj Witt never claimed to walk on water, nor has she ever led anyone to believe she was anything other than a human being. So, you are saying she should be ashamed for loving and living the private life we all are entitled to have? I would lay odds you, too, have a skeleton or two in your own closet, and like my mother used to say, “People who live in glass houses shouldn’t throw stones”. Maj Witt is braving scrutiny and trying to live some semblance of a life without the privacy we all are entitled to. Let the military be the military. And, let people be people. No laws were broken. No injustice was done. There is no issue here.

From years of close association to the U.S. Military (as a brat and a government contractor) I’ve come to conclude that the question is one purely of leadership, from the top.

While Clinton was President military commanders had to pretty much follow the spirit and letter of his policies and not presecute homosexuals for anything but acting out.

While Boy George II has been President military commanders have been pretty much free to express their bigotry by using the rules to throw anyone they don’t like out on their ear.

This includes, should you not be aware, Arabic translators serving with the military support units that provide the National Security Agency (our SIGINT intelligence agency) with translation capability. The lack of which lead to the fact that we had the Arab language intercepts of the 9/11 plotters in our hands before 9/11…

… but couldn’t translate them in time.

3,000+ dead Americans and Billions of dollars lost to our economy so some homophobe in Fort Meade could shower in ‘safety’.

Lance,

The nice things about SIGINTers, especially those who have been through DLI, is that they tend to be fairly kinky, intelligent, and open-minded to begin with. So few folks at Ft Meade or any of the field sites care about us awful gays anymore that it’s like the policy doesn’t even exist. I’m a contractor now, working with MI soldiers, and am totally out. The number of soldiers who care about gays in the military? Zero. The majority of them have volunteered support for repealing DADT. Repealing the policy won’t have any effect on any reality. People who are comfortable with their unit will come out, people who aren’t, won’t. Same as it ever was.

It originally was “Don’t ask, don’t tell, don’t pursue” — but somewhere along the line the “don’t pursue” was dropped.

No one should be discharged from the military because of their sexual orientation (and it’s orientation, not preference — preference implies having a choice, and for many of us it’s not a choice, it’s who we are).

Sen. Clinton has said she would lift the ban on lesbians and gays.

BAC

Sen. Clinton has said she would lift the ban on lesbians and gays. — BAC, @15

So did Willie Wanker, in ’91, when he was campaigning; 8yrs later, what we had was DADT. You can’t trust what those guys say; lies run in their family.

If you would read the past comments on this topic, the Major was allegedly guilty of adultery and possibly lying under oath as well since her “partner” was married with kids. If they reopen this case, she’s still gonna be disciplined since she still was against the UCMJ on several counts.

CSL,
While I understand the point you make, the discussion is moot – if homosexuality, or perceived homosexuality, is not recognized as a lawful orientation, and if it flies in the face of a Constitutional right, then, how could there have been any adultry commited or lies told? I reiterate, there is no issue here.

Why is a crime being leveled against Maj Witt, or any perceived gay person, based purely on the speculation of others? Why is it a crime for a woman struggling in her marriage, to seek the comfort and solice of a good friend? And, where is it written that there are limits to the amount or type of support a friend is permitted to extend? If what you are saying is true, then a 28 year relationship I had with a married woman, who was my best friend, was a gay relationship because we comforted each other in times of stress or need. Neither of us ever considered ourselves anything but best friends and no one questioned us. That friend died last year and I continue to mourn her passing. Does that make us gay? If so, fine. If not, that is fine, too. What if we had sought the comfort of a man instead of each other? That would have been cause for litigation against us by our husbands.

Again, there is no issue here.

To Ms Kurtz … CSL is correct. The Uniform Code of Military Justice is a much stricter code to which all servicemembers are held accountable.
If indeed the relationship was adulterous, then that alone would be grounds for Major Witt’s dismisal … I’ve seen at least a handful of cases in my career where heterosexual adulterous relationships ended otherwise stellar careers.
DADT as a policy is nowhere near perfect, but it is what we have for now. By all accounts, Maj Witt strived to live within that policy and the fact that her commander pursued his investigation on, at best, circumstantial evidence is appauling to yours truly. Her orientation is now ‘out’, so her best efforts to keep that under wraps have been thwarted. At this point, I believe the best that Maj Witt could hope for is to get her pension and, if she desires, return to service as a civilian contractor (DADT rules do not apply).
DD, Maj (ret), USAF

DD,
Appreciative of your input and intelligent, factual comments. And, while I would be hard-pressed to argue with you based on the facts as they are currently known, clearly MAJ Witt broke the rules, regardless whether they are fair or not. Having said that, however, I think it unjust to treat her as guilty before completing this investigation. Do not let her return to work, end her career, if need-be, but don’t take away the benefits, awards, medals, and accolades she earned while in good favor with the Air Force. You can’t diminish the good she did, the lives she saved, the support she provided and the stellar conduct for which President Bush awarded her. Why does all of that go out the window as though she never accomplished the things she did?

I hope this will be considered a prime opportunity to bring the UCMJ into the 21st Century. Certainly there are many gay folks who were able to ‘serve in silence’ and managed to keep their benefits in tact. Risky, perhaps, but then, so is war. When our service member’s spill their blood to keep us safe, their sexual orientation doesn’t matter. They, too, have parents, families, spouses and friends who wait for them to return home safe and sound. And, of all my tax dollars being spent on things over which I have no control, paying retirement benefits to our service members is one line item to which I willingly contribute.

I welcome your comments and hope you will continue to enlighten me. You know much and I have much to learn. But, human rights are human rights, regardless the law, UCMJ, etc. And, human wrong is simply wrong.

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