Nurse wins fight for job

Nurse wins fight for job Tacoma – Maj. Margaret Witt won back her job with the Air Force on Friday in the latest in a series of setbacks for the federal government’s “don’t ask, don’t tell” policy.

The Air Force violated Witt’s constitutional rights when it fired her for homosexual conduct, U.S. District Court Judge Ronald B. Leighton ruled, adding she should be returned to her position as a flight nurse with the 446th Aeromedical Evacuation Squadron at Joint Base Lewis-McChord “as soon as it is practicable.”

“I’m elated,” Witt told reporters after court was adjourned. “I can’t wait to get back to my unit.”

Before releasing his decision Friday, Leighton, an appointee of President George W. Bush, said he regretted being in a position to make military policy, a function he said was far more appropriate for Congress.

But his ruling amounted to an eloquent argument for gay rights in the military, and his reading of it left many members of the audience with wet eyes.

Most of the approximately 50 audience members were Witt supporters. The Justice Department attorneys who represented the Air Force in the case flew back to Washington, D.C., after closing arguments Tuesday. They listened in on Leighton’s reading by telephone and made no response.

Witt was suspended from the Air Force in 2004 after she was outed by the husband of a Spokane woman – a civilian – whom she had begun seeing romantically. Witt sued the Air Force, saying her constitutional rights had been violated.

Leighton originally dismissed Witt’s lawsuit, but the Ninth Circuit Court of Appeals in San Francisco overruled his decision in 2008.

In an opinion that has become known as “the Witt Standard,” the appellate court said it was not enough for the government to establish that open homosexuality, in general, compromises military readiness and “unit cohesion.”

Instead, the appellate court said, the government had to establish that Witt’s conduct, in particular, had those effects.

The government failed to do that, Leighton said, and he concluded the Air Force violated Witt’s substantive due-process rights guaranteed in the Fifth Amendment.

“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 said in his decision.

“To the contrary,” he said, “the actions taken against Maj. Witt had the opposite effect.”