the don't tell show

Federal Judge: Maj. Margaret Witt Must Be Reinstated, But DADT Isn’t Automatically Unconstitutional

Yet again a federal judge rules Don’t Ask Don’t Tell violates constitutional rights: Former Maj. Margaret Witt, kicked out in 2007, must be reinstated, says Judge Ronald Leighton, because “the evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion.”

And: “The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be.”

But that doesn’t mean every gay soldier should be able to serve: Leighton drew the line at blanketly calling DADT a violation of every soldiers’ constitutional rights, instead declaring it must be decided on a case-by-case basis.

Leighton’s ruling comes in a very unique situation, given that he’s making a call that’s impacted by the 9th Circuit Court of Appeal’s 2008 decision that says gays cannot be fired unless the government can show it furthers the military’s goals, effectively creating a unique class of soldiers that exist only in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington — where the 9th Circut has standing.

DoJ didn’t meet that obligation, says Leighton, and thus Witt must get her job back.

And there you have it: Quite possibly the first time a gay soldier can legally serve openly in the military. Well, until DoJ decides it wants to appeal this DADT ruling, as is practice.

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  • Rick Gold

    With liberty and justice FOR ALL.

  • jason

    Oh, but we can’t have Witt serving in the military. She’ll harm unit cohesion. She’ll want to hit on all those other women, for Pete’s sake. Straight women in the military are more interested in getting pregnant. We can’t have Witt refusing to get pregnant, now can we????

    She must submit to all those breeder males that are such paragons of virtue in our military.

  • Brutus

    Good. This is a straightforward, well-reasoned opinion. If appealed, I don’t see how the Ninth Circuit could do anything but summarily affirm under its precedent. However, that precedent is expressly contrary to an Eleventh Circuit decision interpreting Lawrence to require only rational basis, so we could still be headed to SCOTUS. And the Ninth Circuit never explained why it didn’t apply the same deference to military context that SCOTUS has explicitly applied to other constitutional challenges.

  • Dallas David

    Yah, and just think — she’s a security risk! Since she’s a lesbian, she’s vulnerable to being BLACKMAILED! Someone could threaten to expose her if she doesn’t turn over military secrets!

    Sure it sounds nuts. But that’s what they say.

  • Michael Ejercito

    They could still discharge her for adultery.

  • reason

    @Dallas David: It is actually a valid charge, but only holds true for people in the closet. The outright ban increased the likelihood of being blackmailed or releasing information vital to U.S. security and DADT didn’t change it that much. Imagine what someone like Ken Mehlman might have done to protect his identity during the heat of the Bush reelection campaign, or a captain who has staked his entire life on his military career. It actually provides a solid argument on why DADT is extremely dangerous and needs to be done away with, if people are out their is nothing there to blackmail them with.

  • Brutus

    @the crustybastard: I’ll grant you that the first point is arguable, but I think you’re incorrect on the second point.

  • DR

    A) DOJ WILL appeal. We all know this.

    B) This case is too plaintiff-specific. I’d rather see more suits like the one brought by LCR which strike at DADT as it applies to ALL soldiers.

    C) I honestly don’t feel too much for this plaintiff, who readily admits to violating the UCMJ. And no, I’m not sorry for feeling that way. How do you trust an adulterer?

  • Michael @

    Sorry, Queerty, this is not remotely “the first time a gay soldier can legally serve openly in the military.”

    The first to legally challenge the ban 35 years ago, Leonard Matlovich, after several years in the courts, was ordered reinstated in 1980 but chose a settlement instead as he knew the Air Force would just trump up some other excuse to discharge him.

    Perry Watkins, also chose a settlement rather than go back into the Army. His attorney was one of Margie’s attorneys.

    Miriam Ben-Shalom was ordered reinstated in the Army Reserves, but for several years they simply ignored the order. She finally was allowed to reenlist in 1988, the first to do so. She served openly for two years before another court upheld her discharge.

    Keith Meinhold was ordered reinstated in 1992, and served four more years in the Navy as an out gay man.


    Justin Elzie was ordered reinstated in the Marines in 1993, also serving four years “out.”


    Grethe Cammermeyer was ordered reinstated in 1994, and went back into the Army National Guard, serving three years as an out lesbian.


    After she outed herself in 1993, Zoe Dunning’s administrative board ruled that hey had no evidence she’d engaged in homosexual conduct and, so, could continue to serve in the Navy reserves. [The Justice Department issued a directive that banned any future exceptions—admitting you’re gay results in a presumption you must DISPROVE that you have a “propensity” to engage in such conduct, and, therefore, must be discharged.]

    In 1995, Lieutenant Richard Watson’s discharge was enjoined by a court, but it granted the Navy a summary judgment the next year.

  • jason

    Isn’t it interesting how the military creates the potential for blackmail by insisting that knowledge of one’s sexuality must not become public a la DADT?

  • jason

    In other words, the military creates the conditions for blackmail by insisting that one keeps one’s sexuality a secret if one is gay.

  • robert in nyc

    How is it our troops fight alongside openly gay British soldiers (its legal in the UK military) in Iraq and Afghanistan without any threat to unit cohesion? Not one incident has been reported since gays were first allowed to serve openly in the British military. All that unit cohesion nonsense is just a red herring to do nothing but uphold the ban having its genesis in religious bigotry.

    To digress, why is it Queerty isn’t reporting on the recent endorsement by the UK’s Liberal Democratic Party to support full civil marriage equality, as well as the two contenders for the leadership of the Labour Party, the Miliband brothers who’ve declared support for it? Truly amazing that not even the Democrats in the U.S. can’t even declare it an official part of party policy.

  • skip

    @jason: Yeah, we got it. Can you explain it yet another way?

  • Steve

    Read the “declaration” documents at the bottom of the page:

    It’s pretty interesting testimony. Her unit (she served in same reserve unit for many, many years) is very gay friendly. In fact about 10% of the unit seems to be gay or lesbian – including several couples. And while it wasn’t discussed much, it was widely known or suspected. Some people brought their partners to unit functions and invited others to their homes.

  • Brutus

    @DR: The case is plaintiff-specific because it’s an as-applied challenge. When this was up at the Ninth Circuit two years ago, they held that DADT is generally valid, but sent it back down to the district court to determine whether the specific circumstances of Witt’s case actually created any of the concerns that DADT is supposed to address. The district court has now determined that they did not, and, given the Ninth Circuit’s interpretation of Lawrence v. Texas as finding some sort of fundamental right to sexual autonomy, DADT is therefore unconstitutional as applied to Witt.

  • DR


    I get that. I would rather see more suits like the one filed by LCR than have to do a slew single battles. Great, a woman who admittedly violated the UCMJ and could be discharged on that basis anyway can serve as an open lesbian; how about the other 13,999 soldiers who have been discharged and get no relief from this suit?


    FYI: Here is a quick blurb about her service:

    In 1993, Maj. Margaret Witt was a poster woman for the Air Force’s flight nurse recruiting program.

    In her career of 18-plus years, the decorated operating room and flight nurse from McChord Air Force Base earned stellar reviews for her work, which included helping to evacuate the nation’s wounded troops from battlefields and humanitarian missions to aid civilians.

    Maj. Margaret Witt told a news conference Wednesday, “My objective is to go back to my unit and serve my country.”
    In 2003, President Bush awarded her the Air Medal for her Middle East deployment and, later, the Air Force Commendation Medal, for saving the life of a Defense Department worker.

    Less than a year later, after an Air Force investigation, Witt, a reservist, was drummed out

    This is a woman who volunteered for one of the absolute most dangerous selfless assignments any soldier can serve as. To go into the heat of battle put her own life on the line to save wounded fellow soldiers shows what an absolute hero our brave Lesbian sister is……………

    I can 100% guarantee you that the vast majority of the bigoted, hatefull, dispicable scumbags who constantly vote for and support preventing Gays from serving in the military have never even put on a fucking cub scout uniform…………

    And if they were subjected to five minutes of the pure hell on earth this brave woman routinley volunteered to enter to serve her country and rescue fallen soldiers, they would be crying like little girls trembling in fear………

  • Cam

    A Case by Case basis?

    It’s like saying “Well THIS murder was wrong, but We don’t want to mandate that Murder should be illegal on anything but a case by case basis.”

  • Steve

    Not to take anything away from her service, but she didn’t crew helicopters which evacuate people directly from the battlefield.

    She was a flight nurse serving on fixed wing airplanes that transport passengers from field hospitals to larger hospitals in other countries.

  • the crustybastard

    @Brutus said, “I think you’re incorrect on the second point.”

    Ah, then permit me to elaborate.

    The law courts that you are most familiar with are often known as Article III courts, because that’s where the US Constitution establishes the judiciary.

    Congress saw fit to establish a separate and parallel martial law code (UCMJ) that recognizes that the efficient function of a despotic and undemocratic military is inherently incompatible with the Constitutional and fundamental rights of the free citizen. The courts-martial that decide these cases are Article I courts. In short, these courts play by different rules.

    Where an Article III court is required to review the decision of an Article I court, it will apply the military deference doctrine to the decision of the courts martial below, ostensibly recognizing its particular expertise in deciding cases involving the inherent incompatibility and different laws and rules discussed above.

    However, the military gay ban is a public law passed by Congress, not part of the UCMJ. The “judicial review” and “separation of powers” doctrines allow Article III courts to hear Constitutional challenges to Acts of Congress. The military deference doctrine doesn’t apply in such cases merely because the challenged act has some martial association.

    Acts of Congress do, however, enjoy the “presumption of Constitutionality,” (which is itself, I think, a doctrine of questionable constitutionality).

    Anyway, I hope that helps you better understand the convoluted legal doctrines involved.


  • Steve

    Also, somewhere in the Witt trial record (I can’t remember where), it says “deference is not abdication”. Maybe it’s a quote from some other case, but they did consider the issue. And they came to the conclusion that deference to the military can’t mean blind obedience. The military can get some special consideration, but it can’t entirely ignore the Constitution and the law as it sees fit.

  • Michael Ejercito


    A facial challenge means that DADT is unconstitutional under any conceivable application, which is clearly not true, as applying it to situations involving sodomy up and down the chain of command is not unconstitutional. (It might be unconstitutional as applied to the LCR plaintiffs.)

  • Michael Ejercito


    Is using DADT to kick out soldiers who engaged in sodomy up and down the chain of command wrong, or unconstitutional?

  • Brutus

    @the crustybastard: I appreciate the elaboration, but you didn’t really answer the question. The closest you came was “The military deference doctrine doesn’t apply in such cases merely because the challenged act has some martial association,” but you didn’t explain why that is. I also could have done without the condescending tone, but I’ll assume that it was wholly unintentional as you don’t know that I went to law school.

    While it’s true that DADT is not part of the UCMJ, its only application is military. The deference doctrine applies when “military law” is at issue, and while for obvious reasons these cases tend to come up on UCMJ offense, “military law” isn’t limited to the UCMJ—the doctrine predates the UCMJ, and the UCMJ is not the exclusive means by which Congress may exercise its power under Art. I, s. 8, cl. 14. Correct me if I’m wrong, but I don’t think Congress’s gendered promotional scheme given deference in Schlesinger v. Ballard, 419 U.S. 498 (1975), was part of the UCMJ. Nor was the Selective Service Act, given deference in Rostker v. Goldberg, 453 U.S. 57 (1981)—which arguably regulated civilians. See John F. O’Connor, The Origins and Application of the Military Deference Doctrine, 35 Ga. L. Rev. 161, 266 (2000) (“Rostker stands for the proposition that the military deference doctrine should apply to any legislation involving congressional judgments as to the needs of the military and national defense, even if such legislation might apply principally to the civilian populace.”). Servicemembers, incidentally, also cannot bring Bivens actions or sue under the FTCA. Id. 278–83.

    So I have to maintain that you’re incorrect. You’re certainly free to criticize the doctrine, but you’ll have to take it up with SCOTUS.

  • robert in nyc

    Michael No. 25, using the same argument, one might also ask if it could be applied to sodomy involving two consenting opposite sex straight service members, married or unmarried for that matter.

  • Chris H

    @Michael Ejercito: LOL. If DADT is repealed, that doesn’t suddenly make gays and lesbians immune to all other laws within the military. If a hetero can be kicked out for having sex “up and down the chain of command,” then after DADT is repealed, homos can be kicked out too.

    It’s that simple.

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