Margaret Witt Takes "Don't Ask, Don't Tell" to Court

Is it just me, or are district judges totally over the blatantly unconstitutional policies known as "Don't Ask, Don't Tell" (DADT) and the Defense of Marriage Act? We've seen a series of bold, uncompromising opinions in the past few weeks, and it's got my heart racing. But nothing has me buzzing with impish glee more than the case of Witt v. United States Department of the Air Force.

You can read my full brief on the Margaret Witt case here. The basics are this: after being discharged from the Air Force under DADT, Witt sued to be reinstated. The basis of her argument: currently, a homosexual officer is presumed to be a detriment to the military, and the military need only prove homosexuality to discharge. What Witt's attorneys posit is that discharge under DADT requires actual evidence, not just some hypothetical disaster scenario, that a homosexual officer's mere presence has hindered unit morale and cohesion. Since sexual orientation doesn't really have a track record of systematically destroying our armed forces, this high burden of proof for the military would effectively be a big giant nail in the DADT coffin.

So far, so good for Margaret Witt. Her case has already led to a Ninth Circuit ruling that the military cannot discharge people under DADT unless it definitively proves that the firing is necessary to further military goals, like unit cohesion and uncomplicated showering arrangements. This is the new "Witt Standard" being applied in the Ninth Circuit to anyone challenging DADT discharge. With one victory under her belt, Margaret Witt and her crack legal time decided to file a case challenging Witt's discharge. Soon we'll see if the reasons for her discharge meet the new burden of proof named after her.

The first witness on the stand was retired Master Sgt. James Schaffer, one of Witt's superiors in the Air Force. He testified that Witt was "exceedingly competent" and said "her dismissal was so unfair, it was part of the reason he retired in 2007." A military discharge that results in other high ranking officials to retire ... that's not great for unit cohesion, is it?

Another witness, Lt. Col. Vincent Oda, testified that Witt's dismissal was "the loss of an able flight nurse is what that was." He did not testify that she caused a rift in the unit. He did not testify that she sullied military honor. He did not testify that he was afraid to tell his parents there was a lesbian in the unit. Hmm, Witt 2, military 0.

Let me see if I have this straight, pardon the pun. DADT is intended to protect the men and women of the armed forces from some nefarious gay agenda that may or may not destroy unit morale, cohesion and general loyalty to the military. And yet, according to testimony, Witt's homosexuality didn't cause any of that. It was her discharge under DADT that did.

The Department of Justice, for its part, is using some mumbo jumbo defense about how Witt was dating a married woman, and it's the adultery that offends them. Turns out, adultery and homosexuality have the same punishment: dishonorable discharge, loss of pension and benefits. The main difference is that adultery is rarely a standalone reason for discharge, while homosexuality is a one-way ticket to a pension-free, benefit-free, dignity-free forced retirement.

If Margaret Witt's attorneys can prove that her discharge caused more of a problem than her sexual orientation, they should prevail. And although last week's ruling in California that DADT violates the U.S. constitutional rights of free speech and due process will have zero effect on Witt's trial, the two cases together would establish a precedent requiring the military to meet a nearly impossible burden of proof. The bad news? That burden of proof would only apply in cases brought in the Ninth Circuit, for the time being.

The other bad news? Even if the Senate votes to overturn DADT next week, Witt, and tens of thousands of others discharged under DADT, would be forced to re-enlist, rather than be reinstated at their former rank. So Witt, who was one year away from full benefits, would find herself back at square one. The Servicemembers Legal Defense Network is working steadily on adding a reinstatement clause to the bill to overturn DADT, but without such protection, the Witt standard would be crucial for all those hoping to be reinstated at their previous rank after repeal.

Give 'em hell, Margaret.

Photo: James Cridland