Moments ago, Judge Leighton of the US District Court for the Western District of Washington issued his ruling in Witt v Department of the Air Force.

He ruled that Major Witt, discharged from the Air Force in 2007 because of Don't Ask, Don't Tell, had to be reinstated because the government could not demonstrate "an important government interest" that justified her discharge.  This burden was imposed on the government within the jurisdiction of the Ninth Circuit Court of Appeals by their decision in the case, and then remanded back to the district court for resolution of whether the government, could, indeed, demonstrate such an interest.

Federal district court judge Ronald Leighton has ruled that 'Don't Ask Don't Tell' -- when applied to Major Margaret Witt -- violated her rights. He says she should be allowed back in Air Force.

The government failed.

Here is a more complete summary of the case, taken from a previous diary of mine (which also includes similar summaries for other LGBT equality cases).

Witt v Department of the Air Force.

Dispute: Originally, whether the Don't Ask, Don't Tell policy was constitutional.  Having been decided that the policy is not constitutional on its face, but is constitutional under certain conditions (e.g., if the military can show that 'unit cohesion' is protected by a dismissal under consideration), the dispute is now whether the Air Force is justified in dismissing Major Witt under this heightened standard.

The so called Witt Standard only applies within the jurisdiction of the Ninth Circuit Court of Appeals (basically the West Coast), because the government chose not to appeal the Ninth Circuit's decision.

Decision: the court reinstated Witt's substantive due process and procedural due process claims and affirmed the dismissal of her Equal Protection claim... Ninth Circuit found that there must be an "important" governmental interest at issue, that DADT must "significantly" further the governmental interest, and that there can be no less intrusive way for the government to advance that interest.


  • April 2006: Witt files suit in United States District Court.
  • Fall, 2007: Witt's case is dismissed by the District Court. She appeals to the Ninth Circuit.
  • November 5, 2007: Oral arguments are heard by a three judge panel of the Ninth Circuit.
  • May 21, 2008: The panel issues its ruling.
  • May 3, 2009:  The government declines to appeal, leaving Witt as binding on the Ninth Circuit. The case is remanded back to District Court for trial under this new standard.
  • September 13, 2010:  Witt's case began anew in District Court.
  • September 21, 2010:  Trial ends.  Judge Leighton announces that he will hand down his decision on September 24, 2010.
  • September 24, 2010: Judge Leigton hands down his decision.

At this point the case only directly affects Major Witt.  In theory, the decision could be appealed by the government to the Ninth Circuit.


What is not clear is how this will affect other service personnel within the Ninth Circuit.  The government has apparently pretty much ignored the decision in Witt, and no other service personnel that I know of have challenged their dismissal under the Witt standard except for Colonel Fehrenbach, who has not yet been officially discharged, and could, in theory, never be, especially given today's ruling.

It is also unclear to me what would happen to Major Witt if she were transferred out of the purview of the Ninth Circuit.  Could the Air Force then discharge her again?  Or would they be bound to its decision in the particular case of the Major? Apparently she could not be discharged.

What is clear is that the status quo is now, officially, insane.  The law of the land is that in most of the United States, the government can discharge service members if the military finds that they violated the Don't Ask, Don't Tell law.  But, at least in theory, within the jurisdiction of the Ninth Circuit (Alaska, Hawaii, Guam, the Marianas, California, Oregon, Washington, Idaho, Montana, Nevada and Arizona, a rather large swatch of the US both in area and population) the government must not only show that a violation occurred, but that discharge would serve an important government interest.  And today, Judge Leighton ruled that the government had failed to show that such an interest existed at least as it pertained to Major Witt.

I will update this diary with details of the decision once I can find the actual decision.


A federal judge says the Air Force violated the constitutional rights of a highly decorated flight nurse when it discharged her for being gay, and ordered that she be given her job back as soon as possible.

U.S. District Judge Ronald Leighton issued his highly anticipated ruling Friday in the case of former Maj. Margaret Witt. She was discharged under the "don't ask, don't tell" policy on gays serving in the military and sued to get her job back.

In 2008, a federal appeals court panel ruled in her case that the military can't discharge people for being gay unless it proves their firing furthered military goals.

After a six-day trial, the judge said testimony proved Witt was an outstanding nurse and her reinstatement would do nothing to hurt unit morale.

Update:  A few bits from the trial via the Seattle Times

"Good flight nurses are hard to find," said Leighton, who found that the evidence presented at the trial showed Witt's reinstatement "... would not adversely affect unit morale or cohesion" in her unit.

The judge also hailed Witt for her role "... in a long-term, highly-charged civil rights movement. Today, you have won a victory in that struggle."

Statement from SU's Alex Nicholson:

   "Yet another judge has taken yet another righteous, historic, and courageous stand against a discriminatory and unconstitutional law. Major Witt's case is a clear-cut one in which her discharge itself actually harmed unit cohesion, morale, and combat readiness."

Update: At last! Quotes from the decision:

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect.

The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find. The evidence clearly supports the plaintiff's assertion that the reinstatement of Major Witt would not adversely affect the morale or unit cohesion of the 446th AES. The only evidence to the contrary comes in the form of survey responses and preference polls.

In this time of war, the Army, at least, has decided that allowing openly gay service is preferable to going to war without a member of a particular unit.

...the Court will not speculate on what the Air Force would have done to punish Major Witt, if anything, had she been charged with adultery and the Court will certainly not accept an uncharged offense or allegation as a basis for sustaining an otherwise unconstitutional discharge.

For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

Update: Judge Leighton's conclusion:

The application of "Dont’s Ask Don’t Tell" to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.

Update Remarks by Judge Leighton after announcing his decision:

After ruling that retired Major Margaret Witt, a lesbian Air Force Reserve officer, should be reinstated to her unit, U.S. District Court Judge Ronald Leighton on Friday made the following comments from the bench:

   Major Witt, you and I are unlikely to see one another again, in this context, anyway. I’d like to make a couple of points before you go:

   1) I hope you will request reinstatement with the Air Force Reserves and the 446th [her unit]. You will provide the best evidence that open service of gays and lesbians will have no adverse effect on cohesion, morale or readiness in this or perhaps any Air Force or military unit.

   2) You have been and continue to be a central figure in a long-term, highly charged civil-rights movement. That role places extraordinary stresses on you, I know. Today, you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and, hopefully soon, the political branches of government. You said something in the trial that resonated with me. You said the best thing to come out of all this turmoil is the reaction of your parents when you told them of your sexual orientation: their love and support for you.

gay coffins

Originally posted to jpmassar on Fri Sep 24, 2010 at 02:11 PM PDT.

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