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Court revives don’t ask, don’t tell’ suit

By Mike Carter

The Seattle Times

SEATTLE — A federal appeals court has reinstated a lawsuit filed by a former Air Force major who was discharged because she is gay.

A three-member panel of the 9th U.S. Circuit Court of Appeals ordered a Seattle trial judge to review the lawsuit filed by Maj. Margaret Witt using a higher standard of scrutiny than simply the fact that she was a lesbian in violation of the military doctrine known as "don’t ask, don’t tell."

U.S. District Judge Ronald Leighton dismissed Witt’s lawsuit in July 2006, finding that the doctrine represented a "rational response to a legitimate governmental concern" — the discipline and combat readiness of U.S. troops. The military contends that discipline would be undermined by the existence of openly gay soldiers, sailors or airmen.

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However, a three-member panel of the 9th Circuit has sent the case back to Leighton with orders to do what no other court to consider this issue has done so far: require the government to show that discharging gays from the military furthers a "significant government interest," which is a higher burden of proof.

The "don’t ask, don’t tell" policy prohibits the military from inquiring about a service member’s sexual orientation, but it requires the discharge of anyone who acknowledges being gay or who engages in homosexual activity.

Witt, 43, was a highly decorated Air Force reserve flight nurse stationed at McChord Air Force Base in Pierce County, Wash., who in 2004 came under investigation after her superiors received an anonymous tip saying she was a lesbian. According to court pleadings, Witt was involved with a civilian woman who lived in Spokane, Wash.. The major said she never had sexual relations while on duty or on any military base.

Under "don’t ask, don’t tell," the Air Force began discharge proceedings against Witt.

In the meantime, she was unable to accrue credit toward promotion or retirement. Witt was an 18-year veteran, just two years shy of being able to claim her military pension, when she was given an honorable discharge in July.

Aaron Caplan, an American Civil Liberties Union attorney representing Witt, said the appellate judges have significantly increased the military’s burden by requiring it now to show that Witt’s homosexuality caused a serious discipline or moral problem for the Air Force.

"As a matter of due process, the Air Force can be required to show why there is a compelling need to discharge homosexuals who have been sexually active outside of their duty station with persons unconnected to the military," the panel wrote.

Up until now, Caplan said, "all they had to do is show is that you were gay and you were out.

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"Now, they have to prove they have a good reason to ruin somebody’s career."

Charles Miller, a spokesman with the U.S. Department of Justice in Washington, said the department is currently reviewing the court’s decision.

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