- Associated Press - Tuesday, September 14, 2010

TACOMA, Wash. (AP) — A lesbian flight nurse discharged under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday.

Former Maj. Margaret Witt is seeking reinstatement in the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Ms. Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Ms. Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.


“It was a rather dishonorable act on the part of the Air Force,” Mr. Schaffer said. “It should not be about what you are, but who you are.”

Ms. Witt’s case already has led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Ms. Witt’s dismissal met that standard.

The 1993 law prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Judge Phillips’ ruling has no effect on the legal issues in Ms. Witt’s case, gay rights activists believe a victory — and Ms. Witt’s reinstatement — could help build momentum for repealing the policy. The Senate soon could take up a House-approved defense bill that includes a repeal.

Ms. Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Ms. Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Ms. Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Ms. Witt’s sexuality. Ms. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Mr. Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Ms. Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum because that would lead to uneven application of the law, Mr. Phipps said.

Ms. Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Ms. Witt and Air Force policy, the Air Force argues.

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