Next month – more than four years after Maj. Margaret Witt was discharged from the Air Force for being gay – she may finally get the justice due her in a Tacoma courtroom.
A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.
It will be the first judicial application of the so-called “Witt standard” established by the 9th U.S. Circuit Court of Appeals. The Obama administration let pass a May 3 deadline to appeal the 9th’s decision to the Supreme Court, setting the stage for the trial in U.S. District Court next month.
The facts are not on the government’s side: More than a dozen of Witt’s colleagues have given sworn declaration objecting to her dismissal; one was so angry that he refused to re-enlist.
Should the Witt standard blunt the don’t ask, don’t tell policy as expected, it could prove a boon to gay service members who have been waiting on Congress – to date, in vain.
The House earlier this year passed compromise legislation that would repeal the don’t ask, don’t tell policy once the president and military leaders certified that it would not harm troop readiness, recruiting or retention. The Senate has yet to take up the measure.
Guidelines established by Defense Secretary Robert Gates this year were supposed to raise the bar on who or what can initiate an inquiry into allegations of misconduct by a gay or lesbian service member.
But they have not prevented the military from pursuing cases against the likes of Lt. Col. Victor Fehrenbach.
A weapons systems officer on F-15Es who served in Iraq and won nine Air Medals, Fehrenbach is facing possible discharge for cooperating in the police investigation into a false rape allegation.
A civilian had accused Fehrenbach of sexual assault; Boise police and prosecutors later determined the complaint was unfounded but not before Fehrenbach acknowledged having consensual sex with his male accuser. Unbeknownst to Fehrenbach, Air Force investigators were observing the interview.
Fehrenbach is arguing in court that his discharge would violate Gates’ standard for credible sources, but his case rests heavily on the Witt standard. His record – filled with glowing performance reviews – suggests the government would have a hard time meeting its burden.
But the Witt standard is a stopgap measure and no more. It provides limited relief since it applies only to cases in Western states that make up the Ninth Circuit. And it isn’t preventing people like Jonathan Hopkins of Morton – a West Point graduate who led three combat missions in Iraq and Afghanistan – from having to leave careers they love.
Don’t ask, don’t tell needs to go, and it’s up to the Senate to finish the job when it returns next month.