By Robert Barnes
Washington Post Staff Writer
Friday, September 24, 2010; 9:14 PM
A federal judge Friday ordered the reinstatement of an Air Force nurse discharged from the military under the "don't ask, don't tell" policy that forbids openly gay service members. It was the latest judicial setback for a law under attack in both the nation's courtrooms and the halls of Congress.
U.S. District Judge Ronald B. Leighton announced to a packed courtroom in Tacoma, Wash., that evidence at a six-day trial showed former Air Force Reserves Maj. Margaret Witt was an "exemplary officer" who should be "reinstated at the earliest possible moment."
"Good flight nurses are hard to find," Leighton wrote in a 15-page opinion.
In a statement, Witt said she was proud of her career and wanted to serve her country. "Wounded people never asked me about my sexual orientation. They were just glad to see me there," she said.
Witt was represented by the American Civil Liberties Union, which said it was the first time a judge had ordered a reinstatement of a service member discharged under "don't ask, don't tell."
Leighton had dismissed Witt's first challenge to her 2006 dismissal. But the U.S. Court of Appeals for the 9th Circuit told the judge to reconsider the case under a standard of review that put the burden on the military to show why Witt's discharge was necessary to the government's interest.
In effect, the appeals court ruling said judges should be examining the military's decision to discharge individual service members, not whether the law itself was justified.
"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," Leighton concluded.
"To the contrary, the actions taken against Major Witt had the opposite effect."
Leighton's decision in some ways echoed one from U.S. District Judge Virginia A. Phillips in California. She ruled this month that "don't ask, don't tell" is unconstitutional and has a "direct and deleterious effect" on the armed services. She is now considering whether an injunction against future discharges of gay service members should be limited or imposed nationwide.
The cases have put the Obama administration in an uncomfortable position. The president supports a repeal of "don't ask, don't tell," but his Justice Department is charged with defending the nation's laws. On Thursday, it urged Phillips not to issue a broad injunction against the law.
But political pressure will continue to grow. Democrats in the Senate this week moved to repeal the law but were stopped by a unified Republican majority who would not allow the measure to come to a vote. A majority in the Senate supports the repeal, and the House has approved such a measure.
Leighton called "unassailable" the government's argument that Witt's reinstatement would result in an inconsistent policy in enforcing "don't ask, don't tell." The U.S. District Court of Appeals for the 1st Circuit, he noted, has held that the statute is constitutional. But he cited his orders from the 9th Circuit to apply the law to "the specific circumstances of Major Witt."
Testimony showed, he said, that Witt "was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission. "
Witt joined the Air Force in 1987 and moved from active duty to reserve in 1995. She began an affair with a married woman in 2003, and the woman's husband informed the military a year later that Witt was a lesbian. She was discharged in 2007.