U.S. appeals ruling on gay Air Force officer but does not seek to bar reinstatement

President Obama signed the landmark repeal of "don't ask, don't tell" Wednesday morning, ending a 17-year ban on gays serving openly in the military.
By Sandhya Somashekhar
Washington Post Staff Writer
Wednesday, November 24, 2010; 9:15 PM

As expected, the Obama administration this week appealed a decision by a federal judge who ordered the reinstatement of an Air Force officer dismissed under the military's "don't ask, don't tell" policy banning openly gay service members.

But in a surprise move, government attorneys did not ask that the judge's decision be stayed, which clears the way for Maj. Margaret Witt to rejoin the military while the case makes its way through the courts.

The decision was greeted with joy by Witt and her attorneys at the American Civil Liberties Union, which interpreted the news to mean that she can rejoin the military even as the ban on openly gay service members remains.

"I am thrilled to be able to serve in the Air Force again," Witt said in a joint statement with the ACLU of Washington state. "The men and women in the unit are like family members to me, and I've been waiting a long time to rejoin them."

The Department of Justice did not comment Wednesday. Air Force officials said the government might ask for a stay on the judge's ruling later.

The debate might be moot, now that Congress is scheduled to consider repealing the 17-year-old policy banning gays and lesbians from serving openly in the military. The Pentagon is scheduled to release a much-anticipated report Tuesday on how to end the practice, followed by two days of hearings on Capitol Hill.

The report is expected to conclude that the military can lift the ban with minimal and isolated difficulties, according to sources who shared details of the document with The Washington Post.

President Obama has said he would like Congress, not the courts, to end the ban. In a statement Tuesday, White House spokesman Robert Gibbs said the administration's decision to appeal the ruling in Witt's case "in no way diminishes the president's - and his administration's - firm commitment to achieving a legislative repeal of DADT this year."

The Department of Justice traditionally defends federal laws in court.

Gay rights groups have accused Obama of paying lip service to their causes while his administration challenges their victories in court. The apparent mixed signals led to speculation Wednesday that the administration might be trying to placate gay rights advocates by allowing Witt to rejoin the military while her case makes its way through the appeals process.

Air Force officials suggested that a stay was unnecessary, because Witt had yet to pass medical and other tests to qualify for reinstatement.

"If Major Witt shows that she meets the prerequisites to her reinstatement at some time in the future, the Air Force, [Department of Defense] and [Department of Justice] will reevaluate whether or not to seek a stay of the judge's ordered reinstatement, pending appeal of the case," Lt. Col. Karen A. Platt said in an e-mail.

Witt, a former flight nurse in the Air Force, was discharged in 2006 when her superiors discovered she was in a relationship with a woman. In September, a federal judge in Washington state found that Witt's sexual orientation did not harm unit morale or cohesion and ordered the Air Force to reinstate her.

On Tuesday, the Department of Justice appealed the decision to the 9th U.S. Circuit Court of Appeals but did not ask for it to be frozen in the interim.

A spokesman for the ACLU of Washington said that it would be unlikely for the government to change its mind at the last minute and ask for a stay.

"Once we discuss this with the Air Force, present evidence showing she has met the nursing hours requirements, and Major Witt passes the [fitness test] - all of which will happen - we would be shocked if the government were suddenly to seek to prevent her reinstatement," spokesman Doug Honig said in an e-mail.

© 2010 The Washington Post Company