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Another Federal Judge Holds 'Don't Ask, Don't Tell' Unconstitutional

5 years ago
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A federal judge in Tacoma, Wash., ruled Friday that the Air Force violated the constitutional rights of a decorated flight nurse when it discharged her in 2007 under the controversial "don't ask, don't tell" military policy after learning of an affair she was having with a married woman.

U.S. District Judge Ronald Leighton ordered the Air Force to reinstate Margaret Witt, an 18-year veteran of the branch, who achieved the rank of major before she was discharged three years ago for what was classified at the time as "homosexual conduct." Leighton found her termination violated her due process and equal protection rights. "Good flight nurses are hard to find," he said Friday following a trial in which he determined that Witt's reinstatement would "not adversely affect unit morale or cohesion," The Seattle Times reported.

Leighton's ruling is the second in three weeks to undermine the legal foundation of the "don't ask, don't tell" policy, the 17-year-old ban precluding homosexuals from serving openly in the U.S. armed forces.

It was unclear whether the Justice Department would appeal the ruling on behalf of the Air Force. For her part, Witt said following the decision: "I can't wait to just do my job. Go back to my unit and do what I'm supposed to do." The case involved no request for injunctive relief or any other remedy which would affect any other service members aside from Witt.

Leighton had forecast the result earlier in the week, following closing arguments, telling the parties that he was bound to apply the controlling legal standards imposed by the 9th U.S. Circuit Court of Appeals. The federal appeals panel had ruled in Witt's case in 2008 that the military could not discharge an openly gay service member under the contentious termination policy unless the discharge was demonstratively necessary to prevent an identifiable harm to unit morale. On Wednesday, Leighton was sharply critical of the Congress and the White House for their political inertia on the matter, saying of the need for judicial intervention, "This is not the way to run a railroad."

On Sept. 3, a federal judge in southern California ruled the policy unconstitutional as applied to all service members. In that case, U.S. District Judge Judge Virginia Phillips is now contemplating the scope of an injunction that could halt enforcement of the policy against any U.S. service members anywhere in the world. On Thursday, federal lawyers asked Phillips to limit the scope of her injunction.

Both President Barack Obama and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have publicly called for the repeal of "don't ask, don't tell."
Filed Under: Law, Military, Gay Rights

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As for the issue of "Don't ask, don't tell...", the issue of sexual orientation so long as those in uniform do their task as designated; especially those in the line of fire, under stress or in position of command, then becomes an entirely moot point and thus a non-issue. In the military, unlike civilian, world there is no separation of public and private life. However, that notwithstanding, one's sexual preference and one's ability to function in a particular role or to do a given task are two separate issues. As a result, whether bisexual, heterosexual, homosexual or abstinent, the only true measure's are one's ability to fulfill the task at hand, period. If unable to carry out the task, then not qualified and out. Like having a fighter pilot who loses his sight...No way to fix that is there? Then in that event, he's out, discharged. Nobody should care if Lt. "Top Gun" is gay or straight, so long as they can do their job and follow their orders, right? Same thing G.I. Joe/Jane, if they can carry a rifle or whatever and follow their orders the same applies, correct? At least that's how I see it. The U.S. Armed Forces is an Employer, right? And as an Employer, they don't get the right to descriminate any more than if they were any other Employer would, (remember the EEOC?). That should be especially so now that we're in the midst of a quagmire called Afghanistan where our soldiers, sailors, marines and airmen are fighting and dying. So don't start telling us that one American's blood is any better, more qualified or somehow more "worthy" of potentially being spilled than the other as a result of something like "Don't Ask, Don't Tell" or anything else as silly as that. If they are qualified, trained and willing to take the risk, then thank God for the men and women who are willing to serve this country no matter what their sexual orientation!!!!!! Leave what goes on in one's bedroom IN THE BEDROOM!!!

October 09 2010 at 10:31 PM Report abuse -3 rate up rate down Reply

Constitutional or not - dividing our military from within is not a good idea. They need to act together as one to be successful. The bottom line is do you want to be right or do you want to win conflicts? Unfortunately in this case there is no possible way to get both results. Hundreds of years of military experience knows what works and what does not. Politicians and lawmakers with no military experience should not be allowed to make decisions for the military.

September 29 2010 at 6:27 AM Report abuse +1 rate up rate down Reply

Another activist judge who knows NOTHING about anything has decided they know more than hundreds of years of military and what it takes to keep them and a country safe. Let's get this can't protect your legal citizens..because they have rights that others don't in their countries (so American..go to hell) can't uphold the constitution because it is a document that is "out-of-touch" and is "elastic" (to quote the poser-in-chief)..and it must be changed because they're so much smarter than our founders..Unreal...Activists, be damned.

September 25 2010 at 11:51 PM Report abuse +7 rate up rate down Reply

Since when does a federal judge tell the Air Force what to do.Leave military matters to the military.Whats happened to our country?God help the USA.

September 25 2010 at 10:29 PM Report abuse +11 rate up rate down Reply

That's fine. Let's forget about "Don't ask, don't tell." Let's enact just "DON'T." Lady Gaga says that all American soldiers who don't want to serve with gays should just go home...think about it.

September 25 2010 at 9:00 PM Report abuse -10 rate up rate down Reply

First of all I agree that GLBTs or what ever thier sexual choice may be should be allowed to serve openly. However it is not for a civilian judge to decide. The President could end this tomorrow simply by giving the order, that is why he is called Commaner and Chief. He is in charge of the military PERIOD. He gives the order they have to obey.

September 25 2010 at 7:08 PM Report abuse -1 rate up rate down Reply
2 replies to freakusa1's comment

It has more credibility, and is less easily overturned, if it goes through Congress - as it will.

September 25 2010 at 8:22 PM Report abuse -8 rate up rate down Reply

Do you realize the out roar from the Rep and Tea Party and general population if Obama made this decision? He is damned if he does and damned if he doesnt. If he produced solid golden goose eggs for all of mankind someone would whine. And once again how did you stand when the Supreme court decided that GWB was our new President.

September 25 2010 at 11:48 PM Report abuse -6 rate up rate down Reply

This judge needs kicked off the bench, The UCMJ says any Adultrous action is cause for discharge (not just homosexual, but all) These liberal judges need to stop being activist from the bench. Don't stick your nose in Military business.

September 25 2010 at 12:51 PM Report abuse +4 rate up rate down Reply
1 reply to Michael's comment

This isn't activism, it's a ruling on the fairness of a policy. Deciding that corporations are people - THAT is activism.

September 25 2010 at 8:24 PM Report abuse -7 rate up rate down Reply

The judge is wrong. The key is "married" and Affair....the military will not stand for that. The military is right and this judge is wrong. Its not about gay, but committing adultry. Also, I believe gays should not bring it out in the military..that could be a serious security issue. Try living in the military. If you are gay, you may feel you are a woman, and there you are living with a group of men, or you may feel you are a man, and find yourself living with a group of women. Do you understand this? Keep it as is. Don't tell, don't ask.

September 25 2010 at 12:50 PM Report abuse +2 rate up rate down Reply
1 reply to sweetbabi3's comment

Sexual orientation and gender identity are two different things. A gay man is still a man a gay woman is still a woman. It is true that in this case, the woman was involved with a married woman, but don't ask, don't tell is unconstitutional. How is a person's sexuality a security issue? When it comes down to it, someone doesn't care if the person who has their back is gay or straight, what matters is the person has their back. It is wrong for a person to have to suppress a part of themselves in order to do their job. It's just wrong.

September 25 2010 at 9:12 PM Report abuse -9 rate up rate down Reply

This is another example of the hypocracy of elected officials and the ignornace and arrogance within the Military for years. 99% of the Career Military couldn't think for themselves and rely on somone tell them how to act and react. Its the Military inbreeding that created the anti gay attitude. I worked for 3 Lesbian Generals,everbody knew. So why weren't they ever Court Martialed? This case will open the door to Constitutional Due Process in almost every Military Court Martial. Its about time the UCMJ is turned upsdie down and Career Military are exposed for theri incompetnece!!!!

September 25 2010 at 12:48 PM Report abuse -11 rate up rate down Reply
1 reply to alan's comment

Alan; I served 21 years in the military and we are train to think on our own. As an NCO or officer, you have to be prepared to take over a different job in a difficult situation. I also happen to hold a college degree as many others in the military. And I do not appreciate someone telling me that I don't think. I am also currently employed as an intelligence analyst at a civilian agency and make more money than you ever dreamed of. I didn't get here by NOT thinking. I don't know were you served in the military, but it wasn't with me!

September 25 2010 at 8:43 PM Report abuse +11 rate up rate down Reply

I find this ruling very strange. If you are a hetrosexual man or woman and you have an affair with a married person....and they are in the military...they will boot you out. This has nothing to do with being gay...its been a law in the military for years. The judge is wrong. The key here is "married".....military will toss you out in a heartbeat if you do that while in the miliary and if they know about it. Its the affair when someone is married...not being gay. This judge is way wrong.

September 25 2010 at 12:47 PM Report abuse +14 rate up rate down Reply

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