Witt v. Department of the Air Force
Filed May 21, 2008
Cite as 06-35644

Higher Test on Don’t Ask, Don’t Tell Policy

Margaret Witt (Witt) served in the air force as a nurse since 1987. She eventually, became a major in 1999. She was transferred from active to reserve duty in 1995 and was assigned to McChord Air Force Base in Tacoma, Washington.

In all respect, Witt was an outstanding air force officer and received many medals and service awards.

Subsequent to an investigation in 2004, Witt was told that her superiors were initiating separation proceedings against her because of her homosexual activity.

The military board found that Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of the Don’t Ask, Don’t Tell (DADT) policy. The board recommended that she be honorably discharged.

The Secretary of the Air Force acted on this recommendation and ordered that she receive an honorable discharge.

Consequently, Witt exercised her right to an administrative hearing and then filed suit in the district court, seeking declaratory and injunctive relief from the discharge proceedings on the grounds of substantive due process, equal protection and procedural due process.

Witt made the following allegations:

• she was well regarded in her unit and believed she would continue to be so regarded even if the entire unit was made aware that she was homosexual


• the proceedings against her had a negative effect on unit cohesion and morale and that there is currently a shortage of nurses in the air force of her rank and ability

The district court dismissed Witt’s suit under F.R.Civ.P. 12(b)(6) for failure to state a claim.

Witt appealed.

Witt argued that in view of Lawrence v. Texas, 539 U.S. 558 (2003), striking down a Texas statute banning homosexual sodomy, prior to Ninth Circuit decisions rejecting claims such as hers were no longer dispositive as to the substantive due process claim.

The U.S. Court of Appeals for the Ninth Circuit reversed the judgment in part, affirmed in part and remanded. The court’s pronouncement is based on the following grounds:

• the DADT policy permitting discharge on account of homosexual activity must satisfy an as-applied intermediate level of scrutiny under substantive due process


• DADT, 10 U.S.C. §654. generally permits the discharge of armed services members if:
  
  
  1. the member has engaged in or solicited homosexual acts,
  
  
  2. stated that he or she is a homosexual or bisexual, or words to that effect, or
  
  
  3. married or attempted to marry a person known to be of the same biological sex.
  
  
• When a government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates rights identified in Lawrence, it must:
  
  
  1. advance an important governmental interest,
  
  
  2. intrusion must significantly further that interest, and
  
  
  3. intrusion must be necessary to further that interest.

For the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest. The prior decision in Beller v. Middendorf, holding that a predecessor policy to DADT survived heightened scrutiny, was no longer good law.

The heightened scrutiny analysis must be as-applied rather than facial, determining whether a justification exists for application of the DADT policy as applied to Witt.

Remand was required for the development of the record on this issue.

• The district court’s decision had to be affirmed as to the equal protection claim under Philips v. Perry holding that DADT did not violate equal protection under rational basis review. That ruling had not been disturbed by Lawrence, which declined to address equal protection.


• As to the procedural due process claim, the same was not ripe for adjudication and would be remanded for further factual development.