Witt v. U.S. Dept. of Air Force

• Decision Date: 26 July 2006
• Docket Number: No. C06-5195 RBL.,C06-5195 RBL.
• Citation: 444 F.Supp.2d 1138
• Parties: Major Margaret WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF the AIR FORCE; Donald H. Rumsfeld, Secretary of Defense; Michael W. Wynne, Secretary of the Department of Air Force; and Colonel Mary L. Walker, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants.
• Court: U.S. District Court — Western District of Washington

444 F.Supp.2d 1138

Major Margaret WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF the AIR FORCE; Donald H. Rumsfeld, Secretary of Defense; Michael W. Wynne, Secretary of the Department of Air Force; and Colonel Mary L. Walker, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants.

No. C06-5195 RBL.

United States District Court, W.D. Washington, at Tacoma.

July 26, 2006.

COPYRIGHT MATERIAL OMITTED

Aaron H. Caplan, American Civil Liberties Union of Washington, James E. Lobsenz, Nichole D. McCraw, Carney Hadley Spellman, Seattle, WA, for Plaintiff.

Peter J. Phipps, U.S. Department of Justice, Washington, DC, Marion J. Mittet, U.S. Attorney's Office, Seattle, WA, for Defendants.

ORDER

LEIGHTON, District Judge.

THIS MATTER is before the court on Plaintiff's Motion for a Preliminary Injunction [Dkt. # 8] and Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) [Dkt. # 24]. At issue is the constitutionality of 10 U.S.C. § 654, the so called "Don't Ask, Don't Tell" ("DADT") policy regarding homosexuals in the military.

Plaintiff argues primarily that the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), established the right to engage in homosexual relations as fundamental. Under Lawrence, Witt argues, DADT's constitutionality must be reviewed under a higher level of scrutiny than the rational basis review which courts have applied in the past. Rational basis review requires only that government have a legitimate interest in regulating the conduct at issue.

Defendants argue that Lawrence did not change the level of scrutiny to be applied to regulations and policies applicable to homosexuals, and that DADT continues to pass constitutional muster following Lawrence, as it did before that opinion was rendered.

Plaintiff, Major Margaret Witt, is a highly decorated, well-respected flight nurse in the United States Air Force Reserves. She was a Standards and Evaluations Flight Commander with management responsibility for more than 200 flight nurses and medical technicians. She has been used extensively as a role model in Air Force recruiting publications.

In the Summer of 2004, the Air Force began investigating an apparently anonymous allegation that Major Witt was a lesbian. It was specifically alleged that Major Witt had been in a homosexual relationship with a civilian woman from July 1997 through August 2003. The woman with whom Witt was involved was never a member of the Air Force or any other branch of the military. The alleged acts occurred in the home the women shared in Spokane, Washington, across the state from Major Witt's duty station at McChord Air Force Base, outside of Tacoma, Washington. It is agreed that Witt did not ever engage in homosexual conduct on the base, or with a member of the military. At the same time, Witt does not dispute that she is a lesbian and that she did participate in a homosexual relationship.

Although Witt did not make any disclosures regarding her sexual orientation either before or during the investigation, the investigating officer correctly concluded that the allegations were true, and that Witt had engaged in homosexual relations with her civilian partner. In November 2004, Witt was informed that separation proceedings would be initiated against her under the DADT policy. She was precluded from working and from earning pay or points toward promotion and pension, pending final resolution of the separation action. Sixteen months later, on March 6, 2006, Witt was notified that the Air Force had initiated the separation process. Witt was notified of her right to request a hearing before an administrative discharge board if she wished to contest the separation. She immediately did so, but no hearing has yet been scheduled. The government's counsel suggested at oral argument that such a hearing will likely be scheduled by August or September of 2006.

In the meantime, Witt commenced this action. She seeks a preliminary injunction allowing her to continue working and earning points toward promotion and her pension, and precluding the government from following through on its stated intent to separate her from service. She challenges DADT's constitutionality on three bases: (1) Substantive Due Process, based on Lawrence; (2) Equal Protection; and (3) the First Amendment. She also argues that her right to Procedural Due Process was violated, based on the fact that she has not had a hearing more than a year and a half after she was suspended. She argues that scheduling a hearing at this date cannot cure the violation and seeks as a remedy to preclude the government from processing her separation.

ANALYSIS

I. Fed.R.Civ.P. 12(b)(6) Standard

A court may dismiss a claim if it appears beyond doubt that the plaintiff can prove no set of facts to support the claim that would entitle the plaintiff to relief. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir.1983) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Dismissal may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir.1988). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). However, a plaintiff must plead factual allegations with specificity; vague and conclusory allegations of fact fail to state a claim for relief. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir.1988). If a claim is based on a proper legal theory but fails to allege sufficient facts, the plaintiff should be afforded the opportunity to amend the complaint before dismissal. Keniston, 717 F.2d at 1300. If the claim is not based on a proper legal theory, the claim should be dismissed. Id.

The Ninth Circuit has held since 1997 that discharge under DADT does not violate the Fifth Amendment's Equal Protection clause or the First Amendment's right to Freedom of Speech. See Holmes v. California Army National Guard, 124 F.3d 1126 (1997) and Philips v. Perry, 106 F.3d 1420 (1997). This Circuit has also consistently held that the pre-DADT policies and regulations regarding gays in the military did not violate a service member's right to substantive due process. See Schowengerdt v. United States, 944 F.2d 483 (9th Cir.). The result in Schowengerdt was mandated by the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), a case that upheld Georgia's anti-sodomy statute using rational basis review.

In 2003, the Supreme Court's opinion in Lawrence expressly overruled Bowers. It did so without making clear whether a new, higher standard of review is to be applied in cases involving regulation of homosexual conduct. The opinion employed language that in places suggests rational basis review should be applied, and in other places seems to imply that a higher level of scrutiny is required. It is the Lawrence decision that plaintiff relies upon to support her Substantive Due Process argument, and it is the meaning of this relatively recent opinion that is the focal point of this court's inquiry here.

II. Substantive Due Process Analysis

A. Lawrence v. Texas

In 2003, the United States Supreme Court decided Lawrence v. Texas. At issue was the constitutionality of the Texas "Homosexual Conduct" law. The Court held that the Texas anti-sodomy statute, which criminalized private consensual sodomy, was unconstitutional. In the process, the Court expressly overturned Bowers v. Hardwick, a case decided seventeen years earlier. Although the Court made clear its disdain for the Texas law and its complete rejection of the holding in Bowers, it left for others to ponder the precise formula it employed in reaching those conclusions. Some observers, including plaintiff's counsel, argue that the Court changed the constitutional landscape by defining private, consensual, same sex intimacy as a fundamental right, the regulation of which may be justified only by a compelling state interest which must be narrowly drawn to express only those interests. Plaintiff points out that the majority in Lawrence relied heavily on cases that recognized a constitutionally protected autonomy to make personal sexual decisions, to wit: Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (the right of a marital couple to access contraceptives); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (the right of individuals, married or unmarried, to access contraceptives); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (the right to an abortion); and Carey v. Population Services In'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (the right to distribute contraceptives). That those cases all involved strict scrutiny analysis of regulations affecting fundamental rights suggest to plaintiff that private, consensual, same-sex intimacy was accorded the status of a fundamental right by the Lawrence majority. Plaintiff argues that DADT cannot withstand the strict scrutiny demanded by Lawrence.

Plaintiff argues in the alternative that the Lawrence court, at the very least, defined the liberty interest at stake so as to require an intermediate standard of review, a "searching constitutional inquiry." United States v. Marcum, 60 M.J. 198, 204 (U.S. Armed Forces 2004). The Lawrence court defined the liberty interest as one that "gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex". Lawrence, 539 U.S. at 572, 123 S.Ct. 2472. In a series of post-Lawrence decisions, military courts of appeal have employed a three-part test¹ aimed at implementing the "searching constitutional inquiry" inferred by that Court from its reading of Lawrence. Military Courts have on several...