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Federal court rules against military gays policy

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  • Greg Cannon
    http://news.yahoo.com/s/ap/20080522/ap_on_re_us/military_gays;_ylt=ApTCW7FFprr5ydExqxFk6Rqs0NUE Federal court rules against military gays policy By GENE
    Message 1 of 1 , May 21, 2008

      Federal court rules against military gays policy

      By GENE JOHNSON, Associated Press Writer 15 minutes

      SEATTLE - The military cannot automatically discharge
      people because they're gay, a federal appeals court
      ruled Wednesday in the case of a decorated flight
      nurse who sued the Air Force over her dismissal.

      The three judges from the 9th U.S. Circuit Court of
      Appeals did not strike down the military's "don't ask,
      don't tell" policy. But they reinstated Maj. Margaret
      Witt's lawsuit, saying the Air Force must prove that
      her dismissal furthered the military's goals of troop
      readiness and unit cohesion.

      The "don't ask, don't tell, don't pursue, don't
      harass" policy prohibits the military from asking
      about the sexual orientation of service members but
      requires discharge of those who acknowledge being gay
      or engaging in homosexual activity.

      Wednesday's ruling led opponents of the policy to
      declare its days numbered. It is also the first
      appeals court ruling in the country that evaluated the
      policy through the lens of a 2003 Supreme Court
      decision that struck down a Texas ban on sodomy as an
      unconstitutional intrusion on privacy.

      When gay service members have sued over their
      dismissals, courts historically have accepted the
      military's argument that having gays in the service is
      generally bad for morale and can lead to sexual

      But the Supreme Court's opinion in the Texas case
      changed the legal landscape, the judges said, and
      requires more scrutiny over whether "don't ask, don't
      tell" is constitutional as applied in individual

      Under Wednesday's ruling, military officials "need to
      prove that having this particular gay person in the
      unit really hurts morale, and the only way to improve
      morale is to discharge this person," said Aaron
      Caplan, a staff attorney with the American Civil
      Liberties Union of Washington state who worked on the

      Witt, a flight nurse based at McChord Air Force Base
      near Tacoma, was suspended without pay in 2004 after
      the Air Force received a tip that she had been in a
      long-term relationship with a civilian woman. Witt was
      honorably discharged in October 2007 after having put
      in 18 years — two short of what she needed to receive
      retirement benefits.

      She sued the Air Force in 2006, but U.S. District
      Judge Ronald B. Leighton dismissed her claims, saying
      the Supreme Court's ruling in Lawrence v. Texas did
      not change the legality of "don't ask, don't tell."

      The appeals court judges disagreed.

      "When the government attempts to intrude upon the
      personal and private lives of homosexuals, the
      government must advance an important governmental
      interest ... and the intrusion must be necessary to
      further that interest," wrote Judge Ronald M. Gould.

      One of the judges, William C. Canby Jr., issued a
      partial dissent, saying that the ruling didn't go far
      enough. He argued that the Air Force should have to
      show that the policy itself "is necessary to serve a
      compelling governmental interest and that it sweeps no
      more broadly than necessary."

      Gay service members who are discharged can sue in
      federal court, and if the military doesn't prove it
      had a good reason for the dismissal, the cases will go
      forward, Caplan said.

      Another attorney for Witt, James Lobsenz, hailed the
      ruling as the beginning of the end for "don't ask,
      don't tell."

      "If the various branches of the Armed Forces have to
      start proving each application of the policy makes
      sense, then it's not going to be only Maj. Witt who's
      going to win," Lobsenz said. "Eventually, they're
      going to say, 'This is dumb. ... It's time to scrap
      the policy.'"

      An Air Force spokeswoman said she had no comment on
      the decision and directed inquiries to the Defense

      Lt. Col. Todd Vician, a Defense spokesman, said he did
      not know specifics of the case and could not comment
      beyond noting that "the DOD policy simply enacts the
      law as set forth by Congress."

      Witt joined the Air Force in 1987 and switched from
      active duty to the reserves in 1995. She cared for
      injured patients on military flights and in operating
      rooms. She was promoted to major in 1999, and she
      deployed to Oman in 2003 in support of the U.S.
      invasion of Afghanistan.

      A citation from President Bush that year said, "Her
      airmanship and courage directly contributed to the
      successful accomplishment of important missions under
      extremely hazardous conditions."

      Her suspension and discharge came during a shortage of
      flight nurses and outraged many of her colleagues —
      one of whom, a sergeant, retired in protest.

      "I am thrilled by the court's recognition that I can't
      be discharged without proving that I was harmful to
      morale," Witt said in a statement. "I am proud of my
      career and want to continue doing my job. Wounded
      people never asked me about my sexual orientation.
      They were just glad to see me there."
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