Judge orders lesbian air force flight nurse reinstated

[ahenkel]

From the AP

http://www.google.com/hostednews/ap/article/ALeqM5jIWJ1V2EsAQ8O7sPsyfXG0OAQTBwD9IEH7TO0

TACOMA, Wash. — A federal judge says the Air Force violated the constitutional rights of a highly decorated flight nurse when it discharged her for being gay, and ordered that she be given her job back as soon as possible.
U.S. District Judge Ronald Leighton issued his highly anticipated ruling Friday in the case of former Maj. Margaret Witt. She was discharged under the "don't ask, don't tell" policy on gays serving in the military and sued to get her job back.
In 2008, a federal appeals court panel ruled in her case that the military can't discharge people for being gay unless it proves their firing furthered military goals.
After a six-day trial, the judge said testimony proved Witt was an outstanding nurse and her reinstatement would do nothing to hurt unit morale.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.
SAN DIEGO (AP) — U.S. government lawyers are trying to stop a federal judge from issuing an injunction that would immediately do what President Obama has yet to accomplish so far in his first term: Halt the military's ban on openly gay troops.
Now it is up to U.S. District Court Judge Virginia Phillips to decide if she is willing to do that.
The White House says the legal filing Thursday by the U.S. Department of Justice attorneys in a federal court in Riverside follows government procedure by defending an act of Congress that is being challenged, but it does not detract from the president's efforts to get 'don't ask, don't tell' repealed.
"This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT — indeed, it clearly shows why Congress must act to end this misguided policy," White House Press Secretary Robert Gibbs said in a statement e-mailed to The Associated Press.
Phillips declared the military's "don't ask, don't tell" policy unconstitutional in her ruling Sept. 9 following a three-week, non-jury trial and said she would issue a nationwide order to stop the ban. She asked both sides for input first.
The Log Cabin Republicans, the gay rights organization that filed the lawsuit to stop the ban's enforcement, wants her to issue an order that would stop the policy from being used to discharge any U.S. military personnel anywhere in the world.
Their attorney, Dan Woods, called the Department of Justice's objections to the possible injunction hypocritical. He said the administration should be seizing the opportunity to let a judge do what politics has not been able to do.
"It's sad and disappointing that the administration would file such a document days after it urged Congress to repeal 'don't ask, don't tell,'" Woods said.
In their court filing Thursday, U.S. Department of Justice attorneys argued the possible move would be "untenable" and that Phillips would be overstepping her bounds by halting a policy under debate in Congress.
Instead, she should limit any injunction to the 19,000 members of the Log Cabin Republicans, which includes current and former military personnel, the lawyers said.
"A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe," federal attorneys said in their objection.
The policy also is being challenged in a federal court in Tacoma, Wash., where a lawyer for a decorated flight nurse discharged for being gay is urging a federal judge to reinstate her to the Air Force Reserve.
The judge in that case was expected to issue his ruling Friday and has expressed strong doubts about government arguments seeking to have the dismissal upheld.
The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.
In her ruling, Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

Oh and before the oh look an activist judge appointed by a commie muslim fake president comments. He was appointed by Bush in 2002 and approved by congress in 2002



Should be interesting to see how this proceeds.

 

[glenn1]

While I disagree with the policy of DADT and think that she should be allowed to serve, I question the wisdom of the judge not staying the ruling for a couple months. It's very likely that the military commission will be returned in December recommending that gays be allowed to serve, and following that the law will be repealed by Congress (or absent that, the Administration will effectively discontinue enforcing it). While having a judge reinstate her immediately is the morally correct thing to do, it also carries the risk of a backlash and delaying further any Congressional action to repeal DADT.

 

[woolfe9999]

While I disagree with the policy of DADT and think that she should be allowed to serve, I question the wisdom of the judge not staying the ruling for a couple months. It's very likely that the military commission will be returned in December recommending that gays be allowed to serve, and following that the law will be repealed by Congress (or absent that, the Administration will effectively discontinue enforcing it). While having a judge reinstate her immediately is the morally correct thing to do, it also carries the risk of a backlash and delaying further any Congressional action to repeal DADT.

With the expected gains by republicans in Congress, and the nearly 100% opposition to allowing gays in the military within the republican party, I don't think a repeal will pass fillibuster in the Senate, no matter the result of the commission. Maybe Obama will stay enforcement of it, but that will be temporary until the next republican is in office.

- wolf

 

[sportage]

Forget about politics, the courts will do the right thing here as they did with California.
When these issues are brought before courts, civil rights always wins out.
Not all and every court can be labeled "activist". If applying law and justice is "activist", then what they need to do is scrap the extire justice system totally.
Activist is a little dirty word the unmoral bigots made up to attack justice and just rulings by courts and judges.
Take THAT McCain.... As if you really give a crap anyway, except to get your ass re elected.

 

[Vette73]

While I disagree with the policy of DADT and think that she should be allowed to serve, I question the wisdom of the judge not staying the ruling for a couple months. It's very likely that the military commission will be returned in December recommending that gays be allowed to serve, and following that the law will be repealed by Congress (or absent that, the Administration will effectively discontinue enforcing it). While having a judge reinstate her immediately is the morally correct thing to do, it also carries the risk of a backlash and delaying further any Congressional action to repeal DADT.

So Ms. Parks should have just shut up and got to the back of the bus as her staying put may have caused a backlash?

 

[cubby1223]

Seriously, though, I thought the military operated on a different set of rules, constitutional rights of citizens are not necessarily applicable to military personnel.

 

[ahenkel]

It would seem odd that a fighting force that swears to protect the constitution wouldn't find it applicable to themselves.

 

[classy]

I don't think the military have to let her back in. She is banned under military jurisdiction, a civil judge doesn't have power over the military. If she doesn't issue a stay, then the justice department will appeal and she'll still be out. Unless there is something I am missing.

 

[CrackRabbit]

I don't think the military have to let her back in. She is banned under military jurisdiction, a civil judge doesn't have power over the military. If she doesn't issue a stay, then the justice department will appeal and she'll still be out. Unless there is something I am missing.

I think this to more or less invalidate DADT by ruling it unconstitutional. If that is done then she could be re-instated.

 

[classy]

I think this to more or less invalidate DADT by ruling it unconstitutional. If that is done then she could be re-instated.

DADT is not a policy that can repealed by being unconstitutional. Thats the problem. There are a lot of military rules that are unconstitutional persay, but still are apart of military conduct code.

 

[classy]

Its been awhile since I have been familar with military law so maybe someone else can chime in. But I don't think this ruling will change anything as far as her going back to base. I admit I don't know how the law came into being either.

 

[CrackRabbit]

DADT is not a policy that can repealed by being unconstitutional. Thats the problem. There are a lot of military rules that are unconstitutional persay, but still are apart of military conduct code.

Not quite right, Congress passed laws pertaining to DADT as a policy for the military. Hence why Harry Reid tried to slip in amendments to change the law. By declaring it unconstitutional the law must stop being enforced. If that means gays can serve openly or the law reverts to no gays allowed period I'm not sure.
Either way it forces congress to do something about it.
That is my understanding of it anyways. If I'm wrong please correct me.

 

[jonks]

According to John McCain, she can't be reinstated because she was never thrown out because she never told because that is not the policy and that is the fact and he doesn't care what you say, he knows the military very well and that is not the policy, that is not the policy, that is not the policy.

 

[classy]

Not quite right, Congress passed laws pertaining to DADT as a policy for the military. Hence why Harry Reid tried to slip in amendments to change the law. By declaring it unconstitutional the law must stop being enforced. If that means gays can serve openly or the law reverts to no gays allowed period I'm not sure.
Either way it forces congress to do something about it.
That is my understanding of it anyways. If I'm wrong please correct me.

To be honest I am not sure. I know I had a guy in my squad during basic who I am pretty sure he was gay. Cool guy too. I have a problem with service folks who are living their lives off base and are kicked out. There is another woman who in Texas I believe also who was off base and they kicked her out as well.

 

[Nintendesert]

But was she hot?

 

[GroundedSailor]

According to John McCain, she can't be reinstated because she was never thrown out because she never told because that is not the policy and that is the fact and he doesn't care what you say, he knows the military very well and that is not the policy, that is not the policy, that is not the policy.

Just Imagine - he might have become the president

..

 

[WHAMPOM]

While I disagree with the policy of DADT and think that she should be allowed to serve, I question the wisdom of the judge not staying the ruling for a couple months. It's very likely that the military commission will be returned in December recommending that gays be allowed to serve, and following that the law will be repealed by Congress (or absent that, the Administration will effectively discontinue enforcing it). While having a judge reinstate her immediately is the morally correct thing to do, it also carries the risk of a backlash and delaying further any Congressional action to repeal DADT.

Justice delayed is justice denied. Wait for the commision report? Throwing out gay service personnel is what harms the military.

 

[pcgeek11]

This falls under the UCMJ ( Uniformed Code of Military Justice ) here:

http://www.au.af.mil/au/awc/awcgate/ucmj.htm

United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval forces."

925. ART. 125. SODOMY
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense.
(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

933. ART. 133. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN
Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

And then the Mother of All Articles:

934. ART. 134. GENERAL ARTICLE
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

From several sources this is explained:

The General Article (Article 134) encompasses offenses that are not specifically listed in the Manual for Courts-Martial: all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty. Article 134 is often considered to be a "catch-all" for various offenses that aren't necessarily covered by the other articles in the UCMJ. Article 134 offenses include disloyal statements, abusing public animal, adultery, bigamy, bribery and graft, drinking liquor with prisoner, fleeing scene of accident, fraternization, gambling with subordinate, et al. It reflect acts that are not specifically listed, but nevertheless committed, by military personnel that negatively impact the service, unit, etc.[citation needed] Moreover, it includes offenses which are not considered criminal in civilian legal codes.

Even if the judge is correct in his judgement, she can still be tossed out on several other issues which fall under the UCMJ and Not the Civil Courts. The UCMJ covers many units: Army Navy Air Force, Coast Guard, National Guard, Cadets at all of the Academies, Service Reservist, National Oceanic and Atmospheric Administration Commissioned Corps, and Public Health Service Commissioned Corps and even retired Military persons when they are drawing a check.

This is where it should have gone instead of the civilian courts system:

938. ART. 138. COMPLAINTS OF WRONGS
Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.

 

[ahenkel]

oh I bet Art. 125 is violated on a daily no scratch that hourly basis. Both gay and straight.

 

[ahenkel]

Interesting note. Witt the Plaintiff in the case was outed because she had a an affair with a married woman. So the husband emailed the Air Force Chief of Staff.

http://bit.ly/bmBmoz - link is safe its a PDF of the judges ruling

 

[manimal]

The crux of the argument by the judge that the reason DADT is used and the underlying mandate of DADT is that being gay is detrimental to unit cohesiveness and readiness. His finding was the exact opposite since the team had lost an important part of their team and flight nurses are in very few supply.

 

[Freshgeardude]

But was she hot?

NO!

http://prop8trialtracker.com/2010/09/24/breaking-judge-orders-maj-margaret-witt-reinstated-to-air-force/

 

[pcgeek11]

The crux of the argument by the judge that the reason DADT is used and the underlying mandate of DADT is that being gay is detrimental to unit cohesiveness and readiness. His finding was the exact opposite since the team had lost an important part of their team and flight nurses are in very few supply.

The Military should have tossed her for this:

934. ART. 134. GENERAL ARTICLE
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

From several sources this is explained:

The General Article (Article 134) encompasses offenses that are not specifically listed in the Manual for Courts-Martial: all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty. Article 134 is often considered to be a "catch-all" for various offenses that aren't necessarily covered by the other articles in the UCMJ. Article 134 offenses include disloyal statements, abusing public animal, adultery, bigamy, bribery and graft, drinking liquor with prisoner, fleeing scene of accident, fraternization, gambling with subordinate, et al. It reflect acts that are not specifically listed, but nevertheless committed, by military personnel that negatively impact the service, unit, etc.[citation needed] Moreover, it includes offenses which are not considered criminal in civilian legal codes.

Adultery is grounds for a Court Martial. Yes munching on a married woman or man is still adultery, regardless of what Bill Clinton thinks. The DADT Policy would not even be an issue in this case.

 

[ahenkel]

but is adultery a dis-chargeable offense?

 

[Robor]

Just Imagine - he might have become the president

..

Fortunately, 'The Old Man and the C' followed a disaster and prevented that. Sadly, it appears as though people forgot 2001-2009 and stupidity will repeat itself in Nov.