TACOMA—Halting an Air Force nurse's discharge for her relationship with a civilian woman would rightly cripple the military's "don't ask, don't tell" policy on gay service members, civil liberties lawyers said Friday.
Lawyers for the American Civil Liberties Union, pointing to a U.S. Supreme Court ruling striking down a Texas sodomy law, are asking a federal judge here to reinstate former Air Force Reserve Maj. Margaret Witt.
Witt, 42, of Spokane, was forced out of her job as a military nurse in late 2004 after an Air Force investigation into her long-term relationship with a civilian woman. She had been assigned to a medical evacuation squadron at McChord Air Force Base near Tacoma.
The Pentagon has a "don't ask, don't tell" policy that prohibits the military from inquiring about the sex lives of service members but requires discharges of those who openly acknowledge being gay.
Government lawyers are asking U.S. District Judge Ronald Leighton to dismiss the case, pointing out that the military's policy on gays has been upheld in the courts. They also argue against the timing of Witt's lawsuit, saying her discharge has not been fully resolved pending a military hearing.
"There is a public interest in having the laws of the land that Congress and the president enacted be applied," Justice Department attorney Peter J. Phipps argued in court. "There is also danger to the public interest when courts interfere with the military chain of command."
But Witt's case undermines the military's policy on gays, because the decorated officer's relationship with a civilian woman couldn't have raised questions of favoritism or fraternization, attorney James Lobsenz argued Friday.
In fact, Witt's suspension and looming discharge have negatively affected her former unit far more, Lobsenz told Leighton.
"Her unit wants her back," Lobsenz said. "Her unit is upset that she hasn't been there for the last 19 months. People have quit and have refused to re-enlist because she can't come back."
After Friday's hearing, Witt, wearing her blue dress uniform, told reporters that the abrupt discharge proceedings after about 19 years in active and reserve service have been chaotic for her personal and professional life.
"It takes away an entire career," she said. "It's almost like you were never there."
The relationship in question lasted from roughly 1997 to 2003.
Witt's attorneys are touting the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which struck down state statutes criminalizing gay sex as a violation of an individual's constitutional right to sexual privacy.
"The question is, does Lawrence demand, compel this court to find an act of Congress ... unconstitutional?" Leighton asked during Friday's hearing. "I think that's where we are."
Lobsenz acknowledged that drawing a distinction between Witt's relationship with a civilian woman and other gay relationships between service members would bring a flurry of challenges to the Pentagon's present policy on gays.
"From where I sit, it would mean virtually the end of 'don't ask, don't tell,"' Leighton said.
A ruling on the two sides' motions could come in the next few weeks, but Leighton hesitated to put a timeline on his decision Friday, citing the complex legal issues.
— The Associated Press