9th Circuit Reinstates Gay Nurse’s Challenge to “Don’t Ask, Don’t Tell”

The US military’s “Don’t Ask, Don’t Tell” policy is in the news again. An article in the NY Times reports that the 9th Circuit has reinstated a lawsuit filed by Major Margaret Witt, an Air Force nurse, which challenges the policy on substantive due process grounds. Maj. Witt served in the Air Force for two decades, received several medals and was featured in the service’s promotional materials.

While in the Air Force, Major Witt shared a life with a woman not affiliated with the military for six years in Spokane, Wash., about 250 miles from the base to which she was assigned. Although the women kept their relationship private, it appears that a neighbor “called up and said there are these lesbian women living in a house here and one of them is in the Air Force and you should know that.”

After an investigation and military hearing, Major Witt was discharged. She then filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday in Witt v. Department of Air Force, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.

Only two years ago the US Supreme Court dealt with the Don’t Ask Don’t Tell policy when it upheld the constitutionality of the Solomon Amendment which withdrew federal funds from schools that do not allow military recruiters equal access to on campus interviewing. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), the court decided that law schools’ and law faculties’ First Amendment free speech rights were not violated by the Solomon Amendment (10 U.S.C. § 558) because law schools and faculties remain free to voice their opposition to the military’s discriminatory DADT policy.