Washington case next big fight on 'don't ask, don't tell'

For 17 years, Maj. Margaret Witt rose through the Air Force and Air Force Reserves, winning plaudits from colleagues, strong performance reviews from superiors and service medals. A flight nurse at McChord Air Force Base, she treated troops during Desert Storm and was featured in Air Force promotional materials for years.

Witt also is a lesbian who shared a house in Spokane with her partner. To hide her sexual orientation, she skipped military functions where dates were invited. She dodged questions about her personal life. And she avoided inviting colleagues home, lest some possession — a book, a photograph — might tip them off.

"You can't be honest," said Witt, 46. "I didn't want to answer questions, even to say what my weekend plans were."

Her efforts to maintain a low profile ended in 2004, when the jilted husband of a woman Witt had started to date sent a note to the Air Force disclosing her orientation. After an investigation and hearing, the Air Force discharged her in 2007 under the policy known as "don't ask, don't tell."

But her case is far from over. Witt sued, and, in what will be one of the most closely watched challenges to the law to date, she is scheduled to appear in federal court in Tacoma on Monday to argue that the Air Force violated her rights and must reinstate her.

The court appearance comes at a time of growing debate about the policy. A federal judge in California ruled Thursday that "don't ask, don't tell" was unconstitutional.

Witt's case already has set an important precedent. After a federal judge dismissed her lawsuit, the 9th U.S. Circuit Court of Appeals reinstated it, ruling in 2008 that the government had to meet a higher standard of scrutiny before intruding on her private life. The panel sent her case back to District Court for trial.

If Witt prevails, she will become the first woman allowed to serve openly as a lesbian since "don't ask, don't tell" was enacted in 1993. The law, however, would continue to apply to other service members.

"It's not as if she would go around telling people," said James Lobsenz, a lawyer who, with the American Civil Liberties Union of Washington state, is representing Witt. "But if someone asked, 'Are you a lesbian,' she could respond, 'Yes,' and not be thrown out."

Under "don't ask, don't tell," the simple acknowledgment of one's homosexuality can lead to discharge.

In its ruling, the 9th Circuit said the government must prove that discharging Witt — or any other individual service member — is the only way to significantly advance an important policy. The ruling applies only in the 9th Circuit, which covers Washington state and eight other Western states.

The government has asserted that Congress firmly established that homosexual behavior undermines morale and military readiness when it enacted "don't ask, don't tell." But the Obama administration did not appeal the 9th Circuit ruling, saying it would wait until Witt's trial concluded in the lower court.

If Witt wins and is allowed to serve openly as a lesbian, the Justice Department argues in court papers, it will undermine morale in the services by creating two standards of fairness: one for her and another for everyone else.

Some legal experts and supporters of "don't ask, don't tell" say the 9th Circuit's ruling also could open the door to challenges to other policies that attempt to set uniform standards across the military.

But foes of "don't ask, don't tell" say such concerns are overblown. The 9th Circuit set a higher bar for discharging gay and lesbian service members, they say, because the Supreme Court has established that adults have a fundamental right to consensual sexual acts.

To gay-rights advocates, Witt's trial will provide an unparalleled opportunity to attack the central premise of the policy: that allowing gay and lesbian people to serve openly divides units and undermines military readiness.

Witt's lawyers say former colleagues will testify that she was an effective leader and that her discharge, not her presence, hurt morale in her Reserves unit, the 446th Aeromedical Evacuation Squadron. Several witnesses say they suspected she was a lesbian but did not mind serving alongside her.

The real audience for the trial, gay-rights advocates say, is Congress, where legislation supported by the Obama administration to repeal "don't ask, don't tell" is inching forward. Opponents of the policy are hoping Witt's trial will give the legislation a push.

For Witt, the trial offers something more personal: the possibility of vindication and the return to a job she says she loved.

The major said she had wanted to serve in the Air Force since childhood, when her parents would drive her past nearby McChord so she could admire the aircraft. She joined the Air Force soon after earning a nursing degree and served about eight years on active duty before joining the Reserves in 1995.

She said she had considered herself a lesbian nearly from the time she joined the military but managed to keep it secret until 2004, when she began the affair that triggered her investigation. The woman with whom she was having the affair left her husband and remains Witt's partner.

The government argues that committing adultery as an officer was another reason to discharge Witt.

There was a silver lining to her discharge, Witt said. Before, she had hidden her orientation from her parents, both retired schoolteachers. But she sat them down the night before she was to publicly announce her lawsuit in 2006.

"I was so worried about disappointing them," she said. "But they said: 'What can we do? We love you.' It is absolutely the best thing in my life that has come out of this."

Information from The Associated Press is included in this report.