9th U.S. Circuit Court of Appeals asked to invalidate the 1994 “don’t ask, don’t tell” policy

This story from the Air Force Times (http://www.airforcetimes.com/news/2007/11/ap_airforcelesbian_071105/) looks at an effort to have lawsuit reinstated to challenge Don't Ask, Don't Tell. The 9th Circuit is among the more liberal in the country, so it will be interesting to see the result. What is particularly disheartening is to see that convicted child molesters have more due process rights in the military than to gays. I would also note that it is a favorite tactic of the military to expel gays shortly before they hit retirement levels, thereby depriving them of all their military retirement benefits. In the private employment sector, such conduct would generally be considered unfair labor practices. All of this surely makes it disappointing at times to be an American. Here are some highlights:

SEATTLE — A lawyer for a highly decorated military flight nurse who was fired for being gay asked a federal appeals court panel Monday to reinstate her lawsuit against the Air Force, saying her discharge violated her right to be free from governmental intrusion in her private life. Maj. Margaret Witt, 42, was suspended in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. She was honorably discharged last month, after having put in 18 years — two short of what she needed to receive retirement benefits.

Lobsenz argued that the Supreme Court’s 2003 ruling striking down anti-sodomy laws in Texas recognized a “fundamental right” of consenting adults to be free from governmental intrusion into their bedrooms. The relationship was with a civilian woman and took place in their home in Spokane, hundreds of miles from McChord Air Force Base, Witt’s duty station in Western Washington. “At all times she kept her sexual life private,” Lobsenz said.

He also noted that even heterosexual child molesters are allowed to prove, on a case-by-case basis, that they should not be discharged, but gays who engage in homosexual conduct are automatically excluded. Monday’s arguments centered on the ruling in the Lawrence v. Texas case, and whether it in fact established a “fundamental right,” which would require a higher burden for the government to show that “don’t ask, don’t tell” is constitutional.

Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. As a nurse, she cared for injured patients on military flights. 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 the next year came during a shortage of flight nurses and outraged many of her colleagues, one of whom, a sergeant, retired in protest, saying he no longer wished to be part of the military. The two Air Force officers who met with Witt in 2004 to tell her she was being fired, Col. Jan Moore and Maj. Verna Madison, said they were terribly upset about it. Witt, who is backed by the American Civil Liberties Union, attended Monday’s arguments wearing her uniform. She declined to speak with reporters.