allow for cases like Watkins’. Once you were
out (of the closet), you were out (of the
military). End of discussion.
That’s what happened to Witt. In 2004
she was outed and suspended. When the
Air Force began discharge proceedings
against her in March 2006, her legal
team filed a lawsuit to enjoin the military
from going forward. This was met with a
countermotion from the government to
get the lawsuit dismissed. At which point,
Lobsenz—again serving as cooperating
attorney for the ACLU—says, “We had an
argument about what Lawrence v. Texas
meant, which was very academic and very
law school-like.”
In U.S. District Court, Judge Ronald
Leighton sided with the government—
Lawrence hadn’t changed anything—so the
case was appealed to the 9th Circuit, which
in May 2008 reversed Leighton, declaring
that Lawrence created a “heightened
scrutiny” for cases like Witt’s.
“When you challenge a law as
unconstitutional,” Lobsenz says, “you can
challenge the law on its face or you can
challenge it as applied, or both. On its face,
you’re saying there is no factual situation
under which it would ever be constitutional
to apply this law; the law is always
unconstitutional. When you challenge it
as applied, you’re saying, ‘For the moment,
I’m not saying anything about all the other
situations in the world. But this situation,
your honor? That you have right here in front
of you? You can’t constitutionally apply this
law to this case, to this set of facts.’”
Witt’s team, which included Sarah Dunne,
legal director of the ACLU of Washington,
challenged the law both ways, but when
the 9th Circuit sent it back, it instructed
Judge Leighton to look only at the law’s
constitutionality as applied to Witt. But, says
Lobsenz, “We probably had the best case
imaginable for a trial like that.”
For starters, there was Witt herself. “She
had an unbelievably strong and stellar
service record,” Lobsenz says. “She was the
poster child for recruitment for the United
States Air Force Nurse Corps. She was
literally the poster child. They put her picture
on the posters. To say: Join the Air Force. Be in
the Nurse Corps. She was awarded medals by
the president. She had served in Operation
Enduring Freedom; she had flown medical
missions in these hostile theaters; she saved
people’s lives in the air.”
Then there was her unit, the 446th,
considered one of the best air-evac units in
the world. A key passage of the “don’t ask,
don’t tell” law reads as follows: “The armed
forces must maintain personnel policies
that exclude persons whose presence in the
armed forces would create an unacceptable
risk to the armed forces’ high standards of
morale, good order and discipline, and unit
cohesion that are the essence of military
capability.”
After interviews with a dozen unit
members, Lobsenz and Dunne made it clear
that the risk to unit cohesion wasn’t Witt’s
presence; it was her absence.
