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Court: Gays cannot be automatically discharged

SEATTLE — When the military wants to discharge homosexual service men and women under the “don’t ask, don’t tell” law, it must justify its decision each time, a federal appeals court panel ruled Wednesday in the case of a highly decorated flight nurse who sued the Air Force over her firing.

The ruling is the first appeals court ruling in the country that evaluates “don’t ask, don’t tell” in light of Lawrence v. Texas, the Supreme Court’s 2003 decision that struck down that state’s ban on sodomy.

The three judges from 9th Circuit Court of Appeals reinstated Maj. Margaret Witt’s lawsuit against the Air Force, saying the facts of her case must be developed to determine if her dismissal furthered the military’s stated goals of military readiness and troop harmony.

“When the government attempts to intrude upon the personal and private lives of homosexuals,” Judge Ronald M. Gould wrote, “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.”

Witt’s attorney, James Lobsenz, and the American Civil Liberties Union of Washington state, which took on her case, hailed the ruling as the beginning of the end for “don’t ask, don’t tell.” The 1994 law prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.

“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, which did not immediately return a message seeking comment.

Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. Based at McChord Air Force Base near Tacoma, 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.”

But in 2004, Witt was suspended after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. She was honorably discharged last October, after having put in 18 years — two short of what she needed to receive retirement benefits.

“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 news release issued by the ACLU. “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.”