Friday, November 26, 2010

While gov’t appeals DADT, Air Force to reinstate gay servicewoman

by Peter Smith

SAN FRANCISCO, November 24, 2010 ( - The US Justice Department filed a last minute appeal of a federal judge’s ruling to reinstate an openly homosexual servicewoman to the US Air Force, dismissed under the U.S. military’s “Don’t Ask, Don’t Tell” policy.

The government, however, chose not to seek a stay of the judge’s order in its appeal to the 9th US Circuit Court of Appeals, meaning Major Margaret Witt, a former U.S. Air Force flight nurse, will return to duty and remain in her post pending the resolution of litigation.

The American Civil Liberties Union of Washington represented Witt through a 4-year-long lawsuit and announced Witt would be “the first openly gay person to serve in the military due to a court order under DADT.”

Witt was suspended from duty and then dismissed under “Don’t Ask, Don’t Tell”  in 2004. The jilted husband of Witt’s lover is alleged to have exposed Witt as a practicing homosexual.

A 1993 federal law (10 U.S.C 654) prohibits homosexuals from military service, although it is commonly referred by the name of the Pentagon’s enforcement policy “Don’t Ask, Don’t Tell.”

U.S. District Judge Ronald B. Leighton dismissed Witt’s case in 2007, but was told to rehear the case after the 9th US Circuit Court of Appeals said DADT dismissals could only be conducted when morale and unit cohesiveness was shown to be negatively affected.

“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,” Leighton said in a 15-page opinion.

Leighton, however, not only ruled in favor of Witt, but he also refused to sustain Witt’s dismissal on the charge of adultery, also grounds for dismissal under the Uniform Code of Military Justice (UCMJ).

The Justice Department has been fighting to uphold the ban on homosexual service in the federal appeals court, and managed to have US District Judge Virginia Phillips’ worldwide injunction against “Don’t Ask, Don’t Tell” stayed pending outcome of the appeal.

The US Senate will likely take up the matter of repealing DADT after a Pentagon working group releases its December 1 report on the feasibility of repeal.

So far, the U.S. chiefs of the Army, Navy, Air Force, and Marine Corps have expressed public opposition to repeal of DADT, especially when the armed forces are under heavy strain from this wartime footing.

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