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9th Cir. May 21, 2008 06-35644 The court of appeals reversed in part and affirmed in part a judgment of the district court and remanded. The court held that the military?s ?Don?t Ask, Don?t Tell? policy permitting discharge on account of homosexual activity must satisfy an as-applied intermediate level of scrutiny under principles of substantive due process.

Air Force Major Margaret Witt served in the air force as a nurse since 1987 and became a major in 1999. Witt transferred from active to reserve duty in 1995 and was assigned to McChord Air Force Base in Tacoma, Washington. By all accounts, Major Witt was an outstanding air force officer and received many medals and service awards.

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