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Back to Section One | Back to Arts & Entertainment
posted Friday, September 17, 2010 - Volume 38 Issue 38
DADT Saga: Unconstitutional ruling, Witt trial begins
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DADT Saga: Unconstitutional ruling, Witt trial begins

by Shaun Knittel - SGN Associate Editor

The call for the Obama administration, Department of Defense, and Congress to repeal 'Don't Ask, Don't Tell' (DADT) reached a fever pitch this month as everyone from pop stars and politicians to ousted servicemembers and Gay rights groups demanded that the discriminatory policy go away.

The law, known as 'Don't Ask, Don't Tell' was passed in 1993 as part of the National Defense Authorization Act for Fiscal Year 1994, and has resulted in the abrupt firing of more than 14,000 men and women because of their sexual orientation, and has led tens of thousands more to voluntarily terminate their careers because of the burden of serving under this outdated law. There are an estimated 66,000 Gays, Lesbians, and Bisexuals currently serving in the U.S. military and an estimated 1 million Gay, Lesbian, and Bisexual veterans of the U.S. armed forces.

MAJOR MARGARET WITT
A federal trial over whether to reinstate Major Margaret Witt, a Lesbian flight nurse discharged under DADT, began in Tacoma, Washington this week. The trial is just one in a string of trials around the country in regards to DADT.

Opponents of DADT are hoping for another legal victory, or at the very least to help build momentum for repealing the policy.

In 2004, Witt was a member of a squadron based at McChord Air Force Base near Tacoma. She was suspended, investigated for being a Lesbian, and then discharged. Witt challenged the constitutionality of her discharge and a federal appeals court panel ruled in 2008 that the military could not discharge servicemembers for being Gay unless it proved that the firing furthered military readiness.

The case was then sent back to U.S. District Court in Tacoma. Judge Robert Leighton has to determine whether or not Witt's firing hurt her unit.

Throughout the week, Judge Leighton has heard testimony from several of Witt's former colleagues that say she was an excellent nurse, and that it was her dismissal - not the fact that she is a Lesbian - that caused morale problems in the unit.

On September 16, Jill Robinson, who spent 23 years in the Air Force, said she was inspired to join the service after she saw Witt on a recruiting poster. Robinson testified that she saw Maj. Witt as a mentor in the squadron and that her discharge was like "extracting a parent from the family." Robinson said she found the entire process "crude" and unfair. There was no dialogue or any process. "One day she was just gone," she said.

Robinson added that she apologized to Witt, as she felt she was personally responsible for being "part of an institution that did this to her."

The day's second witness was Heidi Smidt, who testified that upon hearing of Witt's initial suspension, her immediate thoughts were that "the loss of Witt was devastating to the Air Force and to the unit." She believed that the squadron "was losing a very valuable member."

Former flight nurse Judith Krill, the next witness, served as a unit deployment manager in the same squadron as Witt. In this position, Krill observed families separating as service members left for deployment. Krill testified that at these departures, she saw heterosexual couples and Gay and Lesbian "roommates" alike separating with the same emotions. Krill said she was horrified to learn that Witt had been discharged because she was "the epitome of what you want crew members to be."

The final testimony of the day came from Faith Mueller, now assistant fire chief in the Tacoma Fire Department. Her career provided insight on how different government agencies deal with housing people. Mueller testified that in most Tacoma firehouses, all firefighters sleep in one large room, regardless of gender and orientation. When Mueller was deployed as a Federal Emergency Management Agency volunteer at Ground Zero after 9/11, she slept in a large conference room with hundreds of other volunteers - again, of all genders and sexual orientations. She observed that housing in the Air Force provides much more privacy than that of FEMA or the Fire Department. When Witt was suspended, Mueller felt that "a grave injustice had been done."

Witt's attorneys, led by the American Civil Liberties Union (ACLU) of Washington, say that it is the Air Force's burden to prove that her reinstatement would be a detriment to unit cohesion. ACLU attorney Sarah Dunne says the Air Force has provided no such evidence.

The trial is expected to last seven days.

JUDGE RULES DADT UNCONSTITUTIONAL
On September 9, a federal judge in California ruled that the U.S. military's ban on openly Gay servicemembers violates the Constitution.

U.S. District Judge Virginia A. Phillips said DADT is a violation of due process and First Amendment rights. Instead of being necessary for military readiness, she said, the policy has a "direct and deleterious effect" on the armed services.

Citing testimony at a two-week trial in July by experts and former servicemembers, Phillips wrote, "All of these examples demonstrate that the act's restrictions on speech not only are broader than reasonably necessary to protect the government's substantial interests, but actually serve to impede military readiness and unit cohesion rather than further these goals."

The judge then granted a request for an injunction to stop the military from discharging openly Gay servicemembers, but allowed the government time to appeal the ruling.

American Veterans for Equal Rights (AVER), the LGBT national veterans' service organization - now in its 20th year - applauded Phillips ruling.

"We were particularly pleased with the grounds on which Judge Phillips reached her decision," said Danny Ingram, National President of AVER. "The judge noted in her decision that 'it defies logic that the purposes of the Act could be served by suspending the investigation [of suspected LGBT servicemembers] during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station.' AVER has been saying all along that the best proof that DADT hurts the military is offered by the military itself, which regularly ignores the policy and retains known LGBT soldiers in combat situations, to discharge them only when the unit rotates home again. If the military really believed that openly Gay personnel 'damaged unit cohesion and morale,' they would get them out of the unit immediately, but they don't, because commanders on the ground know that the real damage to a modern military unit comes from losing a critical member of the team. DADT jeopardizes the mission."

Log Cabin Republicans brought the suit in October 2004.

"As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane DADT statute violates the Constitution," said Log Cabin Republicans Executive Director R. Clarke Cooper.

SLDN TO ACTIVE DUTY: DO NOT COME OUT
Servicemembers Legal Defense Network (SLDN), a national legal services and policy organization dedicated to ending DADT, reissued a national warning to active duty, guard, and reserve servicemembers after Judge Phillips ruled DADT unconstitutional.

"With DADT repeal sitting before the Senate and a federal district court ruling the law unconstitutional, it is critical that servicemembers do not come out," said Aubrey Sarvis, Army veteran and executive director for SLDN. "DADT remains the law, and servicemembers are still being discharged. SLDN is working with clients right now who are in the discharge process. The Pentagon will continue discharging Gay and Lesbian servicemembers until the law ends. We're very close to a vote in the senate and we need all hands on deck."

Even with the updated Pentagon Instructions, the language does not change the fact that statements, acts, or same-sex marriage are still grounds for discharge under DADT, including: A servicemember can still be fired if outed by his or her parents; a servicemember can still be fired for revealing his or her sexual orientation while making a statement to the police that would prevent or help solve a crime; a servicemember's middle school teacher can still out the servicemember 10 years after he or she came out to her in social studies class; a servicemember can still be discharged if he or she reports that someone has threatened to kill them for being Gay; a servicemember can still be fired for saying they would like to return from a combat zone to care for their same-sex partner.

The U.S. Senate is expected to vote on DADT next week.

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