Appeals Court denies Air Force motion

Rebuffing the Air Force, a federal appeals court has kept alive a challenge brought by a former military nurse to the armed forces' "don't ask, don't tell" policy on gays.

Thursday's action by the 9th U.S. Circuit Court of Appeals keeps alive a challenge filed by Margaret Witt, a former Air Force nurse who attained the rank of major.

Witt and her partner, a civilian, lived together in Spokane from July 1997 through August 2003. A year after the couple broke up, the Air Force launched an investigation into allegations that Witt was a lesbian.

Witt was suspended from the Air Force after a military board found she had practiced and declared her homosexuality. She was honorably discharged in October 2007.

The U.S. District Court for Western Washington tossed out a 2006 lawsuit challenging her suspension as a violation of her rights under the Constitution's "equal protection" clause. She appealed to the 9th Circuit.

In May, a three-judge panel of the appeals court denied Witt's equal protection claim. But the panel sent the case back to the district court to determine whether the application of "don't ask, don't tell" to her case furthered the government interest in "high standards of morale, good order and discipline, and unit cohesion" in the armed forces.

The appeals court noted that the U.S. Supreme Court in 2003 struck down a Texas criminal statute penalizing homosexual conduct, and said Witt's case should be evaluated in light of that ruling.

In their appeal, the Air Force and Defense Secretary Robert Gates asked the 9th Circuit to hear the issue with all the judges present. In a 4-3 decision, the court said no.

That means the case will go forward, said attorney Sarah Dunne of the American Civil Liberties Union of Washington, which represents Witt.

Her case will either return to the District Court in Seattle or the government will appeal directly to the U.S. Supreme Court, Dunne said. At issue: whether Witt's homosexuality put her military unit at risk.

"We are looking forward to pursuing her case. We'll put on evidence as to whether the morale of her unit would be affected," Dunne said.

"Don't ask, don't tell" prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.

Witt, a flight nurse who was based at McChord Air Force Base near Tacoma, was suspended without pay after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. Witt was honorably discharged after having put in 18 years - two short of what she needed to receive retirement benefits.

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Information from: The Spokesman-Review, http://www.spokesmanreview.com