Federal Judge Orders Reinstatement of Lesbian Air Force Nurse

U.S. District Judge Ronald B. Leighton ruled on September 24 that the government had failed to justify the decision to discharge Major Margaret Witt, an Air Force Reserve flight nurse, under the "don’t ask, don’t tell" policy (DADT) on military service by gay people. Judge Leighton concluded that the Air Force should be required to immediately reinstate Major Witt, who had been given an "honorable discharge" after admitting during an investigation that she was a lesbian. Witt v. U.S. Department of the Air Force, 2010 Westlaw 37321889 (W.D.Wash.).

Judge Leighton, appointed to federal district court in Tacoma, Washington, by President George W. Bush, had initially dismissed Major Witt’s case in 2006, finding that the military policy "was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation." In so ruling, Judge Leighton was faithfully following older cases from the 9^th Circuit Court of Appeals, which would have jurisdiction over appeals from Washington State, that had rejected challenges to the policy.

However, when Major Witt, represented by the ACLU, appealed to the 9^th Circuit, that court decided that legal developments since its earlier rulings required a new consideration of the constitutional issues. The U.S. Supreme Court had ruled in Lawrence v. Texas (2003) that the right of gay people to engage in sexual activity came within the protection of liberty under the Due Process Clause, striking down the Texas homosexual sodomy law. The 9^th Circuit panel reasoned in Major Witt’s case that since homosexual conduct enjoys constitutional protection, it would violate Due Process to allow the military to discharge a person for homosexuality if the government could not show that the discharge substantially furthered an important governmental interest, the test of "heightened scrutiny."

The full 9^th Circuit, in a sharply divided vote, refused to reconsider the three-judge panel decision, and the Obama Administration decided not to seek Supreme Court review at that point, accepting the 9^th Circuit’s order to send the case back to Judge Leighton for consideration under this heightened standard of judicial review. These events were playing out during the early days of the Obama Administration, with President Obama having pledged during his campaign to repeal the "don’t ask, don’t tell" policy. In those optimistic early days, the government may have expected that the policy would be changed before a trial could be held, since there would have to be time for pre-trial discovery that might last a year or more before a trial could be scheduled.

But repeal of the policy has taken much longer than the Administration expected, discovery was concluded, and the trial was conducted from September 13 through September 21, 2010. Ironically, the House of Representatives having approved a Defense Authorization bill that included a provision authorizing repeal of DADT, the Senate could not summon sufficient votes to break a Republican filibuster against the bill on the same date that Judge Leighton concluded the hearing on Major Witt’s case, September 21. Judge Leighton took just a few days to compose and release his 15-page opinion on September 24, ruling against the government.

Judge Leighton found that the 9^th Circuit panel had "clearly enunciated the Constitutional test that must be applied to DADT. Because DADT constitutes an intrusion ‘upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, it is subjected to heightened scrutiny.’ To survive plaintiff’s constitutional challenge, the statute must (1) advance an important governmental interest, (2) the intrusion must significantly further that interest, and (3) the intrusion must be necessary to further that interest." As Major Witt’s case is an individual challenge to an individual discharge, it does not present the broader issue of whether DADT is unconstitutional on its face, recently addressed by District Judge Virginia Phillips in a case brought by the Log Cabin Republicans that resulted in a ruling against the government as well. The 9^th Circuit treated this as an "as applied" challenge to DADT, so the trial focused more narrowly on the question whether discharging Major Witt was necessary to achieve the goals Congress articulated when it adopted DADT: to safeguard unit cohesion and good order, which Congress found would be endangered by allowing gay people to serve openly.

Judge Leighton found that the trial recorded supported the conclusion that discharging Major Witt did not advance these goals, and actually detracted from them. She compiled a stellar record in the service, was widely respected, and had avoided bringing the issue of her sexuality into the open while on duty, conducting her personal life off duty and far from the military base. She had an extended relationship with a civilian woman that was conducted hundreds of miles away from where she was based and never came to the attention of military officials while it was going on. Unfortunately, after that relationship terminated, she began a relationship with a married woman, whose outraged husband contacted military officials, leading to the investigation in which Major Witt was found to have a "propensity" to engage in homosexual conduct, mandating her discharge from the service.

While adultery violates military law and could subject Major Witt to disciplinary penalties, it was clear throughout the investigation and discharge proceedings that she was being discharged because she had engaged in homosexual conduct with civilians, and had eventually admitted to this during the investigation. She has never been charged by the Air Force with adultery, and it was not the ground for her discharge. (Had it been, it would not likely have been an "honorable discharge.")

Judge Leighton found that the revelation about Major Witt’s sexuality had not adversely affected the esteem in which she was held by her unit, but that her suspension and then dismissal from the service did have an adverse effect. Indeed, Leighton reached more general conclusions extending beyond the sole case of Major Witt.

"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," wrote Judge Leighton. "To the contrary, the actions taken against Major Witt had the opposite effect. The 446^th AES is a highly professional, rapid response, air evacuation team. It is comprised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian service men and women. There is no evidence before this Court to suggest that their service within the unit causes problems of the type predicted in the Congressional findings of fact. . . These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446^th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds."

Judge Leighton went on to find that 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 is mission. Good flight nurses are hard to find." Further, he found that the evidence supported Witt’s argument that her reinstatement "would not adversely affect the morale or unit cohesion of the 446^th AES."

The government had argued that the court should not base its decision narrowly on the 446^th AES, but rather more broadly on the military as a whole, relying on polls showing substantial preference among military personnel against serving with openly gay people, but Leighton was dismissive of this evidence, pointing out that the military had shown its ability to accommodate diversity in the ranks.

While acknowledging these polls, wrote Leighton, "The possibility of such push back is off-set by the known negative impact of DADT upon the military: the loss of highly skilled and trained military personnel once they have been outed and the concomitant assault on unit morale and cohesion caused by their extraction from the military. In this regard, the Court notes the Army’s policy of deploying openly gay or lesbian personnel if the discharge process has not yet begun when the order to deploy issues," a reference to the so-called "stop-loss" policy that produced a decline in gay-related discharges after the initiation of hostilities in the Middle East. "In this time of war," he commented, "the Army, at least, has decided that allowing openly gay service is preferable to going to war without a member of a particular unit."

Leighton also rejected the government’s attempt now to rely on the adulterous nature of Witt’s affair with the woman whose husband had turned her in to the military authorities, pointing out that the Air Force had not relied on this in its discharge decision.

"For the reasons expressed," wrote Leighton, "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."

This is a historic ruling because it is the first time that a federal district judge has ruled after a full trial that the evidentiary record does not support discharging an individual service member under DADT, even if one were to assume that the policy – viewed in the abstract – is constitutional. Unlike the numerous prior cases in which courts have upheld the policy under the less demanding rational basis test and thus dismissed the individual plaintiff’s challenge to his or her discharge, this ruling, if allowed to stand, would mandate that every gay-related discharge be evaluated on its individual facts to determine whether discharge of the servicemember in question is necessary to preserve unit morale in light of the circumstances of their training and service and value to the military. As such, it would vastly increase the administrative expense of enforcing the policy, rendering it practically unworkable.

While much attention has been focused in recent weeks on whether the Obama Administration will appeal Judge Phillips’ ruling on the facial challenge, ultimately the decision whether to appeal Judge Leighton’s ruling may be more weighty, since his ruling came in response to a direct remand from the 9^th Circuit and he followed their instructions to the letter. One can’t predict how the 9^th Circuit would deal with a facial challenge, but it is entirely predictable that an appeal of this as-applied challenge would be futile for the government, in light of the evidentiary record.

The ruling also explodes any stereotype one might still have about how federal judges appointed by George W. Bush will rule in gay rights cases. In this instance, a judge appointed early in the Bush Administration has effectively repudiated the same rationale repeatedly invoked by Republican supporters of DADT, such as Senator John McCain, who led the filibuster effort that prevented a vote on repeal on the day the Witt trial ended. Let’s see whether Republican critics will charge Judge Leighton, one of their own, with being a "judicial activist," bearing in mind that he originally dismissed this case, only to reach a different conclusion once he had immersed himself in the factual record and discovered for himself the severe illogic of the challenged policy.

Comments

[Thomas Kraemer]

The Supreme Court Lawrence v. Texas (2003) sodomy decision specifically said it did not apply to the military. How did the court resolve this fact in the Witt case?

My reading of current military law says the military's regulation against gay sodomy is still in effect because it was never repealed and Lawrence said it did not apply.

[Art Leonard]

In Lawrence v. Texas, the Supreme Court said NOTHING about the military ban on sodomy one way or the other. It was not relevant to the case. Lawrence was a challenge under the 14th Amendment to a state sodomy law. The military is part of the federal government, and thus the question whether the military ban on sodomy is constitutional arises under the 5th Amendment, not the 14th.

Congress has not amended the UCMJ to modify Art. 125, but the military appeals courts have acknowledged that the reasoning of Lawrence does apply to Art. 125. They have found that prosecution for sodomy in the military depends on a finding that the member has engaged in conduct which, under the particular conditions of military life, the military has a right to be concerned about. Most prosecutions have gone forward because they involved such circumstances; for example, sexual activity on a military base, sexual activity between persons of different ranks, sexual activity where the element of consent was not met. There have been a few cases where military appeals courts have reversed convictions under Art. 125 on the ground that the liberty interest identified in Lawrence prevails over military concerns. An example of this might be the lengthy relationship Major Witt had with a civilian which was conducted hundreds of miles from the military base and about which she said nothing. I think it is telling, in this regard, that the Air Force had no interest in prosecuting her for adultery (which also violates the UCMJ) because she did not have her affair with another member of the military and did not engage in sexual conduct on the military base.

The point is that the military appeals courts have all recognized that Art. 125 must be limited in its application because of Lawrence, and that because homosexual conduct comes within the protected liberty interest, taking adverse action against a military member because of their homosexual conduct requires individualized justification.

By analogy, the 9th Circuit holds that heightened scrutiny applies when the Air Force seeks to discharge a member on grounds of homosexuality, and the government must prove that this step will actually advance some legitimate goal articulated in the policy. The judge found that the discharge of Major Witt does not advance the goal; in fact, it retards the goal.