Witt trial judge promises ruling by Friday, doesn’t buy Justice Department’s arguments

by on September 22, 2010  •  In Constitutional law, Military

The trial in Witt v. Air Force ended yesterday, a day earlier than expected. Judge Ronald Leighton indicated that he would need little time to decide the case and felt that he had little choice but to rule for Margaret Witt. From the AP:

U.S. District Judge Ronald B. Leighton said he would issue a ruling Friday in the closely watched case of former Maj. Margaret Witt. As her trial closed, he expressed strong doubts about government arguments seeking to have her dismissal upheld…

In 2006, Leighton rejected Witt's claims that the Air Force violated her rights when it fired her under the "don't ask, don't tell" law. An appeals court panel overruled him two years later and said the military can't fire people for being gay unless it shows their dismissal was necessary to further military goals. The ruling left it to Leighton to determine whether her firing met that standard. At the end of a six-day trial, he suggested the ruling tied his hands…

Her attorneys, led by the American Civil Liberties Union of Washington, [introduced evidence that] Witt was well respected and liked by her colleagues, that her sexuality never caused problems in the unit, and that her firing actually hurt military goals such as morale, unit cohesion and troop readiness…Lawyers for the Air Force said such evidence was irrelevant. Military personnel decisions can't be run by unit referendum, they said.

Instead, Justice Department lawyer Peter Phipps asked the judge to look back at the reasons Congress cited for passing "don't ask," including the possibility that gay service members could have limited privacy during deployments, and determine whether those factors were relevant to Witt's case.

Leighton responded that such an approach would provide a nearly meaningless constitutional analysis, "a far cry" from the heightened scrutiny called for by the 9th Circuit's decision.

He said he considered two other arguments from the government unpersuasive: that Witt posed a threat to unit cohesion and integrity because she once committed adultery, and that Witt shouldn't be reinstated because the military has an overriding need for uniformity in its personnel policies. Refusing to reinstate Witt for the latter reason would require him to overrule the 9th Circuit, Leighton said.



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