SEATTLE — A lesbian flight nurse discharged under "don't ask, don't tell" can rejoin the Air Force Reserve, even as the government appeals a judge's ruling that returned her to the job, her lawyers said Tuesday.
U.S. District Judge Ronald Leighton ruled in September that former Maj. Margaret Witt must be reinstated because her dismissal advanced no legitimate military goals and thus violated her constitutional rights.
The Justice Department appealed that ruling to the 9th U.S. Circuit Court of Appeals on Tuesday, its deadline for doing so.
But government lawyers did not ask the appeals judges to freeze the lower court's ruling while the appeal proceeds – and Witt's lawyers said that means she can be reinstated.
"I am thrilled to be able to serve in the Air Force again," Witt said in a written statement released by the American Civil Liberties Union of Washington state. "The men and women in the unit are like family members to me, and I've been waiting a long time to rejoin them."
Witt was suspended in 2004 and subsequently discharged after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.
Leighton initially upheld her firing, but in 2008 a three-judge 9th Circuit panel said military members could not be discharged under "don't ask" unless their dismissal furthered military goals such as troop morale or unit cohesion. It sent the case back to Leighton, who ruled that Witt's firing actually hurt morale in her unit.
If Witt is reinstated, she would be serving openly at a time when the military's policy on gays is in disarray. President Obama and Defense Secretary Robert Gates want to end the ban, but say it should be done through Congress, not the courts. A federal judge in California has declared the 1993 "don't ask, don't tell" law unconstitutional – a ruling the DOJ is also appealing – and in the meantime, the Pentagon has issued new guidelines that have drastically cut the numbers of gays being dismissed under the policy.
The Pentagon plans to release a monthslong study Nov. 30 on how lifting the gay service ban would affect the armed forces.
The Justice Department did not immediately say why it did not seek a stay of Leighton's ruling. The Air Force Reserve at Joint Base Lewis-McChord south of Seattle, where Witt was based, did not immediately return a message seeking comment.
"It's indicative of the effort the White House is making to thread the needle on 'don't ask, don't tell,'" said Chris Neff, deputy executive director of the Palm Center, a pro-repeal think tank based at the University of California, Santa Barbara. "They're holding the line that they need to continue to appeal these, but they are taking an extra measure to address this policy and try to make it moot. This is the first White House that has really made an effort to keep gays in the military."
Despite being excited to rejoin the Air Force, Witt said she was disappointed the government was appealing at all.
Justice Department spokeswoman Tracy Schmaler said the department was simply defending the law, as it historically does when acts of Congress are challenged. White House Press Secretary Robert Gibbs insisted that the appeal shows why it's important for the Senate to repeal the "misguided policy" quickly – before a new Congress takes over, with a slimmer Democratic majority in the Senate.
"This filing in no way diminishes the president's – and his administration's – firm commitment to achieving a legislative repeal of DADT this year," Gibbs said in an e-mailed statement.
"Don't ask" prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.