Image: Margaret Witt, Sher Kung
Ted S. Warren  /  AP file
Margaret Witt, right, and Sher Kung, an attorney with the ACLU, head to court Monday for a hearing in Tacoma, Wash.
updated 9/24/2010 11:05:27 PM ET 2010-09-25T03:05:27

A decorated lesbian Air Force flight nurse says she can't wait to get back to her unit after a federal judge Friday ruled that she should get her job back as soon as possible in the latest legal setback to the military's "don't ask, don't tell" policy.

"I'm ready whenever they are," Maj. Margaret Witt said in a live interview on msnbc's "The Rachel Maddow Show." "I can’t wait to get back to my unit, to be with my incredible unit members; they're a wonderful group," she told Maddow.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but Leighton is now the second federal judge this month to deem the policy unconstitutional.

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Witt was suspended in 2004 and subsequently discharged under the "don't ask, don't tell" policy after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Barring an appeal, Witt will now be able to serve despite being openly gay. A federal judge in California earlier this month ruled the law unconstitutional and is considering whether to immediately halt the ban. While such an injunction would prevent openly gay service members from being discharged going forward, it wouldn't do anything for those who have already been dismissed.

'Highly charged civil rights movement'
Leighton hailed her as a "central figure in a long-term, highly charged civil rights movement." Tears streaked down Witt's cheeks and she hugged her parents, her partner and supporters following the ruling.

"Today you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon the political branches of government," the judge told her, choking up as he recalled Witt's dramatic testimony about her struggles.

Witt, who has been working at a veterans hospital, told Maddow that she was surprised that "the judge spoke to me personally."

She said Leighton "really gets" the impact her firing had on everyone, particularly her family, and the support they gave her.

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Witt called the ordeal over "don't ask, don't tell", especially the notion that she could be outed by a third party, "very enlightening."

"I was aware I wasn’t going to tell; they weren’t supposed to ask me," she said.

Lt. Col. Victor Fehrenbach, a fighter pilot who is also fighting dismissal after an 18-year Air Force career, appeared with Witt on Maddow's show. He told Maddow that Witt's case gives him hope that he may prevail.

Leighton determined after a six-day trial that Witt's discharge advanced no legitimate military interest. To the contrary, her dismissal hurt morale in her unit and weakened the squadron's ability to carry out its mission, he ruled.

"If you pull me out of my unit, it's going to harm that unit ... it affects the morale of my unit," Fehrenbach told Maddow.

Second legal victory
The ruling was the second legal victory this month for opponents of "don't ask, don't tell," and it throws the law into further disarray.

Witt's attorneys, led by the American Civil Liberties Union of Washington, say her case now provides a template for gays who have been previously discharged to seek reinstatement.

Gay rights advocates say that if the government must justify each firing under "don't ask," it will mean a slow death for the policy — even if an outright repeal isn't endorsed by Congress or the courts.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered engaging in homosexual activity.

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The Justice Department did not immediately comment on the ruling, but James Lobsenz, Witt's attorney, said he expected an appeal.

In 2006, Leighton rejected Witt's claims that the Air Force violated her rights, following precedent that the military's policy on gays is constitutional. An appeals court panel overruled him two years later, holding that in light of a Supreme Court ruling striking down a Texas ban on sodomy, "don't ask, don't tell" intrudes on the rights of gay service members. For the government to discharge gays it must prove that their firings further military goals, the panel said.

"There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds," Leighton ruled.

'I'm just so thrilled'
Leighton became emotional as he recalled Witt's testimony about the support she has received from her parents since she came out to them on the eve of filing her lawsuit.

"The best thing to come out of all this tumult is still that love and support," he said.

A crowd of spectators remained quiet until the judge left the courtroom, when it erupted in cheers.

"I'm just so thrilled I have the chance to do what I wanted to do all along: that's return to my unit," Witt said.

She also said that she appreciated the judge's recognition of the many gays who continue to quietly serve in the military.

The Associated Press contributed to this report.

Video: Another blow to DADT as court orders reinstatement

  1. Transcript of: Another blow to DADT as court orders reinstatement

    MADDOW: How about a bit of big breaking news late on a Friday? A federal judge appointed by President George W. Bush in 2002 has issued a federal court ruling late today, essentially dismantling the "don't ask, don't tell" policy . This is the second very strong federal court ruling against the military 's gay ban in less than a month. The plaintiff in this case has not done a national TV interview before. She will be joining us in just a moment for an exclusive discussion, along with someone whose face will be familiar to those of you following our coverage of this issue over the last seven weeks or so -- excuse me, over the last year or so. The last seven weeks or so have been an unbelievably good seven weeks for gay rights in America -- at least on paper. The proposition that removed existing same sex marriage rights after couples had already been married in California , the Prop 8 case -- Prop 8 struck down as unconstitutional seven weeks ago. Two weeks ago, "don't ask, don't tell" struck down in its totality as unconstitutional by a federal judge in California . Two days ago, a ban on same sex couples adopting children passed by the legislature in Florida more than 30 years ago also struck down by a state court judge. And now the U.S. Air Force Major Margaret Witt case. In a court room in Tacoma , Washington , today, Judge Ronald Leighton , appointed by George W. Bush in 2002 , was ruling for a second time on Major Witt 's case. Now, Major Witt was suspended in 2004 . She was ultimately discharged under the "don't ask, don't tell" policy . In 2007 , she sued the government over her dismissal. The same judge who ruled today ruled, Ronald Leighton , ruled the first time against Major Witt , saying her dismissal was proper under the "don't ask, don't tell" policy . But then something remarkable happened. When Major Witt appealed that ruling, the higher court, the federal appeals court , sided with her and they sided with her in a very specific way. They told Judge Leighton in the lower court that he had to hear her case again. But this time, he had to apply a different legal standard when he judged her case. If you want to know anything about how this part of civil rights in America goes, if you want to know how "don't ask, don't tell" is going to get struck down by the courts and that's probably how it is going to die, what the court told Judge Leighton was he had to consider Margaret Witt personally. He had to rule on whether her, specifically her as an individual person , her being fired, was necessary to further the military goals of unit cohesion and morale and readiness, the goals that the policy is supposed to further. The policy says gay people have to be rooted out of the military and fired from their jobs because of unit cohesion and morale and readiness because those military goals require it. Well, the appeals court told Judge Leighton , you know, they got to prove that. Judge Leighton looked at Margaret Witt 's case again, and today, this time, said, no way does firing her help the military . Under what is known as the Witt standard, Judge Leighton ruled today that the Air Force must reinstate her and in his words, "as soon as practicable." From the ruling, quote, "The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interests and advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. Her unit is a highly professional, rapid response air evacuation team. It's compromised of flight nurses and medical technicians who are well-trained, well-led and highly motivated. They provide a vital service to our fighting men and women around the world. Serving within that unit are known or suspected gay or lesbian servicemen and women. There is no evidence before this court to suggest that their service within the unit causes problems of the type predicted in the congressional findings of fact that justify the 'don't ask, don't tell' policy . These people trained together, fly together, care for patients together, deploy together. There is nothing in the record before this court suggesting that the sexual orientation , acknowledged or suspected, has negatively impacted the performance, dedication or enthusiasm of the unit. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds. The evidence before the court is that Major Margaret Witt was an exemplary officer. She was effective leader, a caring mentor, a skilled clinician, and integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission." "Good flight nurses," the judge says, "Good flight nurses are hard to find. The evidence clearly supports the plaintiff's assertion that the reinstatement of Major Witt would not adversely affect morale or unit cohesion." And then he said they had to take her back. Joining us now, Major Margie Witt and Lieutenant Colonel Victor Fehrenbach . Colonel, Major, thank you both for being here and congratulations on this ruling. LT. COL. VICTOR FEHRENBACH, U.S. AIR FORCE FIGHTER PILOT: Thank you, Rachel .


    MADDOW: Major Witt , let me ask what you think this means practically for you in the short-term? Do you expect you will be reinstated right away?

    WITT: You know, I sure hope so. I'm ready wherever they are.

    MADDOW: What have you been doing since you were discharged under the "don't ask, don't tell" policy ? What have you been doing in civilian life?

    WITT: I'm a pediatric physical therapist and I'm also the rehab coordinator for the veterans' hospital.

    MADDOW: And if this goes through if what the judge says has to happen ends up happening, if the Air Force does take you back, you are -- you're eager to get back to -- back into the Air Force ?

    WITT: Oh, absolutely. I can't get -- you know, I can't wait to get back to my unit and be with my incredible unit members. They're wonderful group.

    MADDOW: Colonel Fehrenbach , you are currently fighting your own discharge from the Air Force . Like Major Witt , you did not tell anyone anything about your sexual orientation . You were outed by a third party. What is this decision today mean to you and to your case?

    FEHRENBACH: Well, the decision today just solidifies what was before known as the Witt standard and sets a precedent. So, it gives me a lot of hope we'll be successful in my fight. As you said, I didn't tell, you know, they asked me, and I've been fighting this battle for two years now. And, again, from day one, when I was confronted this, in May 16th , 2008 , two days later is when Margaret got her first victory and that gave me hope. And I hope today doesn't just give me hope, but there are thousands of people out there being confronted with a "don't ask, don't tell" case right now and I hope Margaret 's victory today give them hope as well and allows them to fight.

    MADDOW: Victor , let me ask you specifically about the rationale for the judge's ruling. It wasn't just that Major Witt should not have been fired because her being gay wasn't harming the military . What the judge ruled essentially was that firing her is what harmed the military . I wonder if that rationale, either in legal terms , nuts and bolts legal terms as a precedent, or just in terms of the morale of the people who are fighting this policy , if that is a significant -- a significant part of the ruling.

    FEHRENBACH: I absolutely think it is. You know, as you mentioned, he said it wasn't her orientation that was the problem for the unit, is when they fired her. And then he added good nurses, good flight nurses are hard to find. You know, I live it everybody. If you pull me out of my unit, it's going to harm that unit. And not only that, it affects the morale of my unit. So, I think that's across the board. And, again, they said in my case as well that my presence was detrimental to good order, discipline, morale and unit cohesion. At the irony of that was at the time when they said that, not one single person in my unit, except for my commander and number two in charge, even knew of the nature of my case. So, they have no grounds to discharge me.

    MADDOW: Margaret , after the ruling, the judge in this case, Judge Leighton , I know that he brought himself to tears and much of the courtroom to tears when he read a statement describing distresses on you as a person , to be what he called a central figure and a long term highly charged civil rights movement. He described how it resonated with him personally when you said how important your family was in supporting you. I imagine that was surprising. What did it mean to you that the judge addressed you in those very personal terms at that point?

    WITT: It was very surprising. It was very heartfelt. He spoke to me directly. I think he really understands the impact that it has on everyone around you, particularly family, and how thankful I was to have my parents behind me. And I think he really -- he really gets that and he knew that it was -- it was a big struggle and a big event.

    MADDOW: Major Witt , your case is similar to Colonel Fehrenbach 's, that you weren't asked, you didn't tell, you were outed by a third party. Before that happened, did you -- did you -- what did you expect from the "don't ask, don't tell" policy ? Did you know you could be outed and investigated and kicked out without ever volunteering to anybody that you were gay?

    WITT: I -- the third party thing is -- was very enlightening, yes. I wasn't aware of that. I think I was aware -- I wasn't going to tell, they weren't supposed to ask me, but I really wasn't aware that the third party could out me at any time.

    MADDOW: Victor , let me just ask you one last question -- I know that you told us here on this show that the president told you man to man, eye to eye, that he was going to end this policy . He told you he was going to get it done. I remember you saying it here on this show. I wonder, as things have changed so much since you and I first talked over a year ago, I wonder if you were starting to think that maybe it's going to be people like you and Margaret Witt and Mike Almy who are going to change this policy despite the president, not because of him.

    FEHRENBACH: As you mentioned, I've been disappointed over and over again by the lack of leadership and courage that we have seen from so many of our political leaders. Thanks to, you know, Major Witt and people like her, you know. I've had hope I've been able to fight, and on that note -- you know, we have experienced a loss -- you could call it this week -- but that fight is not over as well. I think people need to realize they can still contact their senators. I personally would like to sit down and talk with my senator from Ohio , Senator Voinovich , and tell him my story -- maybe to sway his decision there. I would love to sit down with Senator McCain . I would love Senator McCain to come to work with me on Monday and see how today's military operates and see how this is a nonissue of the military . He wants to rely on a hypothetical survey. He can come to work with me and see how professional military people operate.

    MADDOW: Lieutenant Colonel Victor Fehrenbach and Major Margie Witt -- again, congratulations on this big freaking deal of a ruling and thanks so much for joining us tonight. I wish I was there to take you both out for a beer.

    FEHRENBACH: Oh, Rachel , I've got a hat for you on Monday and go Irish. Beat Stanford .

    MADDOW: That's going to be your consolation hat after Stanford beats you guys. But, seriously, Victor , appreciate it.

    FEHRENBACH: Not right, not right. Thank you.

    MADDOW: Thanks to you, guys. All right. So, the administration and the Senate are unwilling or unable to do what the federal courts appear to have no problem doing. In other words, when it's not political, "don't ask, don't tell" does not stand up. In a moment -- why that is and what happens next. We'll


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