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Air Force nurse appeals discharge; hearing in Seattle
Air Force nurse appeals discharge; hearing in Seattle
by Liz Meyer - SGN Staff Writer A widely respected military flight nurse who was fired for being a Lesbian asked a federal appeals court panel in Seattle on Monday to reinstate her lawsuit against the Air Force.

The ACLU argued before the 9th Circuit U.S. Court of Appeals on behalf of Maj. Margaret Witt, saying her discharge violated her right to be free from governmental intrusion in her private life. Witt, 42, was suspended in 2004 after the Air Force received an anonymous tip that she had been in a relationship with another woman. The relationship was with a civilian woman and took place in the couple's home in Spokane, hundreds of miles away from Witt's station at McChord Air Force Base.

In March 2006, the Air Force placed Maj. Witt on administrative discharge on grounds of homosexual conduct. Witt, who had twice received personal praise from President Bush, had served in the military for 18 years and was just two years shy of receiving retirement benefits. The Pentagon's "don't ask, don't tell" policy, the basis for Witt's discharge, came years after Witt first enlisted.

Attorney James Lobsenz told the three judges from the 9th U.S. Circuit Court of Appeals the thirteen-year-old policy was unconstitutional. "Don't ask, don't tell" prohibits the military from asking about service members' sexual orientation. However, it also requires discharge of those who acknowledge being Gay or engaging in homosexual activity.

A private report released by the University of California Blue Ribbon Commission in 2005 suggested that discharging troops under the "don't ask, don't tell" policy had cost the government $363.8 million over 10 years.

Earlier this year, twelve Gay and Lesbian veterans asked a federal appeals court in Boston to reinstate their lawsuit challenging dismissal based upon the policy.

Lobsenz argued that if the 9th Circuit judges do not overturn "don't ask, don't tell," they need to at least revisit Witt's lawsuit. He pointed to the Lawrence v. Texas case as a precedent for this case. The Supreme Court's 2003 overturning of anti-sodomy laws in the case, Lobsenz argued, recognized a "fundamental right" of consenting adults to be free from governmental intrusion into their bedrooms.

If the court agrees with Lobsenz's claim that consenting adults, including those in the military, are protected under the 2003 ruling, the government will then have to effectively re-prove the constitutionality of "don't ask, don't tell."

Most of Monday's arguments centered on the Lawrence v. Texas case, with Lobsenz and Jonathan F. Cohn, a deputy assistant attorney general with the Department of Justice, arguing primarily over the semantics of a "fundamental right."

Cohn said Lawrence v. Texas justices know full well the significance of the phrase "fundamental right" and didn't use it in their ruling: "The court very clearly stops short of ... recognizing a fundamental right."

If there is no clearly defined fundamental right, Cohn said, the court should defer to the government's defense of "don't ask, don't tell": that Gays in the armed forces are "disruptive."

Witt joined the Air Force in 1987. After eight years of active duty, she switched to the reserves in 1995. As a nurse, she cared for injured patients on military flights. She was promoted to major in 1999, and she deployed to Oman in 2003 in support of the U.S. invasion of Afghanistan. A citation from President Bush that year said, "Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions."

Her suspension the next year came during a shortage of flight nurses and outraged many of her colleagues, reports the Seattle P-I. The Air Force is already short more than 100 flight nurses.

"I really have faith that if I can't succeed in this, someday someone will, and maybe I'm helping make it one step closer," Witt said.
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