Sunday, September 26, 2010

The Witt Rule...

Most people who heard on Friday that Margaret Witt, an ex-Air Force Major and decorated Flight Nurse, had been ordered by a federal court judge to be reinstated were happy for her and for a further eroding of this stupid DADT policy that polls tell us a majority of Americans don’t agree with and would like to see revoked. 
We should be cautious about writing "a majority of Americans", though, because it depends on the wording that the pollsters use.  A few months ago a most curious result was reported by Dalia Sussman in The Caucus Blog of the NYTimes. [Here]  It seems that if you ask if gays should serve openly in the military, more folks than not will answer yes.  However, if you change the word “gay” to “homosexual,” you get a more negative reply.
The wording of the question proved to make a difference. Seven in 10 respondents said they favor allowing “gay men and lesbians” to serve in the military, including nearly 6 in 10 who said they should be allowed to serve openly. But support was somewhat lower among those who were asked about allowing “homosexuals” to serve, with 59 percent in favor, including 44 percent who support allowing them to serve openly.
Is the word “gay” less threatening or less sexual than “homosexual?  Whatever the quirky reasoning, there is continuing evidence that American public opinion is shifting more and more to acceptance.  The pace must seem glacially slow to those gay men and women in the military, but at least the shift is in the more accepting direction.

As we noted above, last Friday Federal Court Judge Ronald Leighton reinstated an Air Force major who had been discharged and ordered that she be returned to her unit as soon as “practicable.”  Major Margaret Witt had been an exemplary and decorated Air Force Reserve officer who was suspended in 2004 and eventually discharged in 2007 after 17 years of service.  
During the discharging process, she sued to be reinstated.  At that time Judge Leighton threw out her case, stating that her rights had not been violated.  Witt fought back and appealed his ruling.  Her suit was heard by the Ninth District Court of Appeals who threw the case back down to Judge Leighton, saying that the only reason a service man or woman can be discharged under DADT is if the discharge would further “military interests.”  Judge Leighton thus had a new lens to view the case. 
Judge Leighton ruled: [Here]
The application of 'Don't Ask Don't Tell' to Major Margaret Witt does not significantly further the government's interest in promoting military readiness, unit morale and cohesion...Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.
Leighton went even further, stating that her discharge actually hurt the military: 
The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission...Good flight nurses are hard to find.
This ruling has given birth to what is being referred to as the “Witt rule,” viz. does the individual’s discharge harm the military?
Rachel Maddow managed to snare Major Margaret Witt for her first national interview on Friday.  [See the video Here] Major Witt appeared with Lt. Col. Victor Fehrenbach who is also facing discharge under DADT.  We shall see in the coming months if the “Witt rule” will help Col. Fehrenbach.  We certainly hope that it will.  
This ruling follows another judicial ruling earlier this month by Judge Virginia A. Philips in a federal District Court in California which declared DADT unconstitutional. [Here]  It seems that the only branch of government that has courage and intelligence these days is the federal judiciary.  It also suggests that today’s toxic climate saps Congressional members and the executive of intelligence, integrity and spine.
We are reminded that judicial leadership was the way that racial discrimination was finally broken in this country.  It was through decisions such as Brown v. Bd of Education that showed Congress the way out of the nightmare world of Jim Crow and finally to passage of the Civil Rights Act of 1964. 
Can we hope?...  

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