TACOMA, Wash. – A lawyer for a decorated flight nurse discharged for being gay urged a federal judge Tuesday to reinstate her to the Air Force Reserve, and the judge indicated he might have no other choice.
U.S. District Judge Ronald B. Leighton said he would issue a ruling Friday in the closely watched case of former Maj. Margaret Witt. As her trial closed, he expressed strong doubts about government arguments seeking to have her dismissal upheld.
The judge's comments came a few hours after Senate Republicans blocked legislation to repeal the 1993 "don't ask, don't tell" law on gays serving in the military.
Gay rights advocates considered the Senate vote a setback, but it focused attention even more on legal challenges to the law — including Witt's case and a federal case in California, in which a judge found earlier this month that the law violates the free speech and due process rights of gay service members.
In 2006, Leighton rejected Witt's claims that the Air Force violated her rights when it fired her under the "don't ask, don't tell" law. An appeals court panel overruled him two years later and said the military can't fire people for being gay unless it shows their dismissal was necessary to further military goals.
The ruling left it to Leighton to determine whether her firing met that standard. At the end of a six-day trial, he suggested the ruling tied his hands.
"I made my call with regard to whether this act was constitutional," he said. "My colleagues — my friends — said, 'Ron, you got it wrong,'" Leighton said during an extensive back-and-forth with a Justice Department lawyer. "They told me what I needed to do, what I needed to ask."
Witt, of Spokane, joined the Air Force in 1987 and was suspended in 2004, just short of retirement, after her commanders learned she was in a relationship with a civilian woman. She was a flight nurse with an aeromedical evacuation squadron responsible for transporting and caring for injured soldiers.
Her attorneys, led by the American Civil Liberties Union of Washington, insisted that Witt was well respected and liked by her colleagues, that her sexuality never caused problems in the unit, and that her firing actually hurt military goals such as morale, unit cohesion and troop readiness. Several members of the squadron testified to that effect and said they would welcome Witt back to the unit.
Lawyers for the Air Force said such evidence was irrelevant. Military personnel decisions can't be run by unit referendum, they said.
Instead, Justice Department lawyer Peter Phipps asked the judge to look back at the reasons Congress cited for passing "don't ask," including the possibility that gay service members could have limited privacy during deployments, and determine whether those factors were relevant to Witt's case.
Leighton responded that such an approach would provide a nearly meaningless constitutional analysis, "a far cry" from the heightened scrutiny called for by the 9th Circuit's decision.
He said he considered two other arguments from the government unpersuasive: that Witt posed a threat to unit cohesion and integrity because she once committed adultery, and that Witt shouldn't be reinstated because the military has an overriding need for uniformity in its personnel policies. Refusing to reinstate Witt for the latter reason would require him to overrule the 9th Circuit, Leighton said.
He said he did not believe the courts were the appropriate venue for deciding whether gays can serve openly in the military, and he credited the Justice Department lawyers for doing an excellent job despite having a tough legal row to hoe.
"You are in a difficult spot, and everybody knows it," he said. "Your ability to take a licking and keep on ticking is much appreciated."
James Lobsenz, an attorney for Witt, said in his closing argument that the government presented no evidence that Witt would cause problems if returned to her unit. It was unconscionable, he said, that she had to conceal her sexuality for years even as she won awards for distinguished service in evacuating and treating wounded troops and government employees from Afghanistan and elsewhere.
"She can go back and serve, and no one will have to lie," Lobsenz said.