Expert Testimony Concerning the Open Service of Homosexuals Held to be Relevant

Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in service of the United States of America. It is observed on the last Monday of May.

New York was the first state to officially recognize the holiday in 1873. It was recognized by all northern states by 1890. Differently, the South refused to acknowledge the day and honored their dead on separate days. This went on until after World War I when the holiday changed from honoring just those who died fighting in the Civil War to honoring Americans who died fighting in any war.

Let’s examine the crucial moments in military history on this occasion such as when the military’s “Don’t Ask, Don’t Tell” policy was challenged raising crucial questions about discrimination and military readiness.

Facts:

Margaret Witt joined the Air Force as a Second Lieutenant in 1987. She was promoted to First Lieutenant in 1989, to Captain in 1991, and to Major in 1999. In 1995, she transferred from active to reserve duty and, as a flight nurse, was assigned to the 40th Aeromedical Evacuation Squadron (AES), later to become the 446th.

During her service in the military, Witt received the meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous other awards and commendations. Her annual “Officer Performance Reviews” were routinely high.

In November 2004, Major Witt received a memorandum from her superiors informing her that the military would initiate separation proceedings against her for violating the DADT policy. She could not work, receive pay, or earn credit toward pension or promotion pending the conclusion of the separation action. Sixteen months later, in March 2006, she was notified that the Air Force was initiating a discharge action against her due to her homosexuality. She immediately requested a hearing to contest the separation, and she brought suit a month later in the Western District of Washington. She still had not received a military hearing when the district court issued its decision that July, and she did not receive a military hearing until September 2006.

Plaintiff Margaret Witt challenged the constitutionality of the statute known as “Don’t Ask, Don’t Tell” (“DADT”) found at 10 U.S.C. § 654, and its implementing regulations. Witt claimed that her discharge under DADT violated both her procedural and substantive due process rights under the due process clause of the Fifth Amendment. The district court dismissed the complaint citing failure to state a substantive due process claim.

Discussion by the Court

“Don’t Ask, Don’t Tell” (“DADT”) refers to the statutory U.S. policy of excluding openly homosexual individuals from serving in the military. It prohibits members of the armed forces from engaging in homosexual acts, stating that they are gay or bisexual, or openly marrying a person of the same sex.

The constitutionality of “Don’t Ask, Don’t Tell” (DADT) has been supported by federal courts in the past, but these rulings occurred before the Supreme Court’s decision in Lawrence v. Texas. In Lawrence, the Court invalidated a Texas anti-sodomy law, asserting that private homosexual conduct is protected as a part of the “liberty” protected by the substantive Due Process Clause of the Fourteenth Amendment.

Role of Expert Testimony

Major Witt’s approach to the fact finding mission of this Court was to present testimony of members and former members of her unit, the 446th AES, who testified persuasively that serving with Margaret Witt and other known or suspected gay and lesbian service members did not adversely affect unit morale and cohesion. To the contrary, it was Major Witt’s suspension and ultimate discharge that caused a loss of morale throughout the squadron. In addition, several other former service members testified about their military experience as closeted gays or lesbians and the positive reaction of their fellow servicemen and women once they acknowledged their sexual orientation.

Expert witnesses were called to inform the Court about the most up-to-date research concerning the interaction of disparate peoples within a military organization, the experience of other militaries which allow open service of gays and lesbians and finally, current polling data on the attitudes of servicemen and women (current and former) about the subject of open service of gays and lesbians. All of this information provided some evidence concerning the likely affect of Major Witt’s open service as a lesbian flight nurse upon unit morale and cohesion, in the 446th AES and beyond.

Held

On appeal before the Ninth Circuit Court of Appeals in May 2008, the Ninth Circuit ruled that the District Court had erred in granting the Government’s motion to dismiss Major Witt’s claim.

In so doing, the Court articulated what has come to be called the “Witt Standard,” which required heightened scrutiny and fact-specific, individualized justification for each individual’s discharge under DADT. 

Key Takeaway:

Expert testimony concerning the interaction of disparate peoples within a military organization shaped a ruling which mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The facts presented by the experts bought to the Court’s attention the likely affect of Major Witt’s open service as a lesbian flight nurse upon unit morale and cohesion.

Case Details:

Case Caption:	Witt V. Department of the Air Force
Docket Number:	3:06cv5195
Court Name:	United States District Court, Washington Western
Date:	May 21, 2008