The trial by which Major Witt (of Witt Standard) fame, seeks her reinstatement into the Air Force is over.  And it's looking good.:

A lawyer for a decorated flight nurse discharged for being gay urged a federal judge Tuesday to reinstate her to the Air Force Reserve, and the judge indicated he might have no other choice.

U.S. District Judge Ronald B. Leighton in Tacoma did not immediately issue a ruling in the case of former Maj. Margaret Witt. But as the trial closed he expressed strong doubts about arguments made by government lawyers seeking to have Witt's dismissal upheld.

The judge suggested that his hands were tied by a 2008 appeals court ruling in the case, which said that the military can't fire people for being gay unless it shows that their dismissal was necessary to further military goals.

Senate Republicans on Tuesday blocked legislation to repeal the 1993 “don't ask, don't tell” law on gays serving in the military.

Leighton said he would issue his ruling Friday afternoon.”

Seattle Times

This will be interesting to watch. Assuming a favorable decision, can the government realistically appeal the decision, given that it has already been sent back down from the Ninth Circuit to the District Court? Will the government appeal?

What about a stay? It's hard to imagine a stay being granted on appeal, because the government's probability of success has to be incredibly low given that the Ninth Circuit has already ruled against them as a general principle (the original Witt trial), and this is just an instance of that general rule.  But I'm not a lawyer so what do I know?

 After the fold is a summary of the Witt case:

Witt v Department of the Air Force

Dispute: Originally, whether the Don't Ask, Don't Tell policy was constitutional.  Having been decided that the policy is not constitutional on its face, but is constitutional under certain conditions (e.g., if the military can show that 'unit cohesion' is protected by a dismissal under consideration), the dispute is now whether the Air Force is justified in dismissing Major Witt under this heightened standard.

The so called Witt Standard only applies within the jurisdiction of the Ninth Circuit Court of Appeals (basically the West Coast), because the government chose not to appeal the Ninth Circuit's decision.

Decision: the court reinstated Witt's substantive due process and procedural due process claims and affirmed the dismissal of her Equal Protection claim… Ninth Circuit found that there must be an “important” governmental interest at issue, that DADT must “significantly” further the governmental interest, and that there can be no less intrusive way for the government to advance that interest.

Timeline:

  • April 2006: Witt files suit in United States District Court.
  • Fall, 2007: Witt's case is dismissed by the District Court. She appeals to the Ninth Circuit.
  • November 5, 2007: Oral arguments are heard by a three judge panel of the Ninth Circuit.
  • May 21, 2008: The panel issues its ruling.
  • May 3, 2009:  The government declines to appeal, leaving Witt as binding on the Ninth Circuit. The case is remanded back to District Court for trial under this new standard.
  • September 13, 2010:  Witt's case began anew in District Court.
  • September 21, 2010:  Trial ends.  Judge announced a decision to be handed down September 23, 2010.

At this point the case only directly affects Major Witt.  If successful, she would be reinstated as an Air Force officer.  If not successful, the court will have concluded that the Air Force did have sufficient reasons to discharge her, even under the Witt Standard.

In theory, any decision could be appealed to the Ninth Circuit.

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 If you would like to review the status of other LGBT equality cases, I've done a similar description and timeline for six others here.

jpmassar

jpmassar

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