New Scrutiny For "Don't Ask, Don't Tell"

The military cannot automatically discharge people because they're gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal.

The three judges from the 9th 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 Wednesday's ruling, military officials "need to prove that having this particular gay person in the unit really hurts morale, and 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," wrote Judge Ronald M. Gould.

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 Maj. 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."