Federal judge dismisses lesbian’s challenge of ‘don’t ask, don’t tell’
Editor’s note: On May 21, 2008, a three-judge panel of the 9th U.S.
Circuit Court of Appeals denied
Margaret Witt’s equal-protection claim. But the panel sent the case back to the
district court to determine whether the application of “don’t ask, don’t tell”
to Witt’s case furthered the government interest in “high standards of morale,
good order and discipline, and unit cohesion” in the armed forces. The Air Force
appealed that ruling, but the full 9th Circuit on Dec. 4 refused to hear the case.
SEATTLE — Dealing Washington state gay-rights advocates another loss, a federal judge has dismissed a challenge to the military’s “don’t ask, don’t tell” policy brought by a highly decorated Air Force nurse who was forced out of her job because she’s a lesbian.
Air Force Reserve Maj. Margaret Witt, 42, of Spokane, had
asked U.S. District Judge Ronald B. Leighton to reinstate her, citing a U.S.
Supreme Court ruling striking down a Texas anti-sodomy law. Leighton refused and
dismissed her case after finding that the Texas decision did not affect the
constitutionality of “don’t ask, don’t tell,” the military’s policy prohibiting
inquiries about the sex lives of service members but requiring the discharge of
those who acknowledge being gay.
Witt had claimed that being discharged under the policy would violate her
free-speech and due-process rights. Leighton, however, rejected those
The ruling came yesterday, the same day the state Supreme Court upheld
Washington’s ban on gay marriage.
“When it rains, it pours,” said Doug Honig of the American Civil Liberties
Union, which plans to appeal Witt’s case to the 9th U.S. Circuit Court of
Appeals. “Major Witt is much decorated and has saved people’s lives. The people
she helped didn’t care about her sexual orientation.”
Witt, a 19-year Air Force veteran who had been assigned to a medical
evacuation squadron at McChord Air Force Base near Tacoma, was suspended without
pay in late 2004 after the Air Force received an apparently anonymous tip that
she had been in a long-term relationship with a civilian woman. Her discharge is
pending; the Air Force has not yet scheduled a hearing she has requested to
“This court is not unsympathetic to the situation in which Major Witt
currently finds herself,” Leighton wrote. “Within the military context, she did
not draw attention to her sexual orientation, and her colleagues value her
contribution to their unit and apparently want her back. She has served her
country faithfully and with distinction.”
However, he concluded, the U.S. Supreme Court’s 2003 ruling in Lawrence v.
Texas, which struck down state statutes criminalizing gay sex as a violation
of an individual’s right to sexual privacy, had no effect on the constitutional
analysis of “don’t ask, don’t tell.” The policy has uniformly been upheld by the
courts and remains valid, Leighton wrote.
“Don’t Ask, Don’t Tell represents a rational response to a legitimate
government concern,” the judge said.
That concern is to avoid risks to unit cohesion posed by the presence of gays
in the military, he said.
The Air Force Reserve did not immediately return a call seeking comment.
Meanwhile, a decorated sergeant and Arabic language specialist who was
dismissed from the U.S. Army under the “don’t ask, don’t tell” policy says he
plans to appeal his discharge.
Bleu Copas, 30, told the Associated Press he is gay, but said he was “outed”
by a stream of anonymous e-mails to his superiors in the 82nd Airborne Division
at Fort Bragg, N.C.
An eight-month Army investigation culminated in Copas’ honorable discharge on
Jan. 30 — less than four years after he enlisted, he said, out of a post-Sept.
11 sense of duty to his country.
Copas now carries the discharge papers, which mention his awards and
citations, so he can document his military service for prospective employers.
But the papers also give the reason for his dismissal.
He plans to appeal to the Army Board for Correction of Military