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The "Witt Standard" and Pending DADT Cases

Sher Kung,
红杏视频 of Washington
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August 18, 2010

Last week, Air Force Lt. Col. Victor Fehrenbach " if it attempts to discharge him from military service under Don't Ask, Don't Tell (DADT).

The "Witt standard" comes from a significant (PDF) in an 红杏视频 of Washington case, , in which the court ruled that the Air Force must prove that dismissing a specific servicemember under DADT is necessary to ensure 鈥済ood order, morale, and discipline鈥 within the unit he or she served, rather than simply proving in a more general way that DADT broadly advances military readiness. With that requirement of proof, the 鈥淲itt standard鈥 was born.

We , who was discharged from the U.S. Air Force on the grounds that she engaged in homosexual conduct. Maj. Witt is a much-decorated flight nurse and operating room nurse assigned to McChord Air Force Base near Tacoma. In 1993, she was selected to be the 鈥減oster child鈥 for the Air Force Nurse Corps recruitment flyer. In 2003, she was awarded an Air Force Commendation Medal for saving the life of a Defense Department employee who had collapsed aboard a flight from Bahrain.

The lawsuit sought to reverse the decision to discharge Maj. Witt. The military provided no evidence that her sexual orientation had caused a problem in the performance of her military duties. The district court initially dismissed the suit.

We appealed the case to the U.S. Court of Appeals for the 9th Circuit. that in order to pass constitutional muster, the Air Force must prove discharging Maj. Witt is necessary for purposes of military readiness within her unit. While the 9th Circuit's decision did not overrule DADT, it made clear that the military must make this individualized determination before it can discharge LGBT service members.

Lt. Col. Fehrenbach's case, which the, is pending before the federal district court in Idaho. (. Previously, then-Supreme Court nominee .)

In the meantime, Maj. Witt's case will be back before the U.S. District Court for Western Washington for trial, . The 红杏视频 will prove that it was Major Witt鈥檚 dismissal 鈥 not her presence in her unit 鈥 that was bad for morale.

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