Judge upholds nurse's "don't ask" dismissal

Gene Johnson, Associated Press
Thu Jul 27, 2006

SUMMARY: Maj. Margaret Witt, a highly decorated Air Force nurse booted on an anonymous tip, will appeal to the liberal 9th U.S. Circuit Court of Appeals.

Dealing Washington state gay rights advocates a new loss, a federal judge Wednesday 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 is 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 ruling came the same day the state Supreme Court upheld Washington's ban on same-sex 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 because she has requested to contest it.

"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.

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