(Spokane, Washington) A full panel of the 9th Circuit Court of Appeals has ruled a legal challenge to “Don’t Ask, Don’t Tell” – the ban on gays serving openly in the military – can proceed.

In upholding the decision by the panel, the 9th Circuit said the case should be considered on the basis of the 2003 ruling by the U.S. Supreme Court, which struck down a Texas criminal statute penalizing homosexual conduct. The Supreme Court in that decision said that laws against sodomy were an unconstitutional intrusion on privacy.

The Air Force and Defense Secretary Robert Gates asked the full 9th Circuit to hear the issue. In a 4-3 decision, the court let stand the panel decision to allow Maj. Margaret Witt’s case to proceed.

Witt joined the Air Force in 1986. She served in the Persian Gulf and in 2003 was awarded an Air Force Commendation Medal for her action in saving the life of a Department of Defense employee who had collapsed aboard a government-chartered flight from Bahrain.

In 1993, she was selected to be the “poster child” for the Air Force Nurse Corps recruitment flyer.

She then was assigned as a flight nurse and operating room nurse at McChord Air Force Base near Tacoma, Washington.

But after commanders received an anonymous tip in 2004 that she is a lesbian and in a long-term relationship, the military began an investigation that led to her discharge under the military’s ban on gays serving openly.

In November 2004, Major Witt was placed on unpaid leave and told she could no longer participate in any military duties, pending formal separation proceedings.

In March 2006, the Air Force informed Major Witt that she was being administratively discharged on grounds of homosexual conduct.

In upholding Witt’s lawsuit the 9th Circuit did not strike down the military’s “don’t ask, don’t tell” policy. But the court said the Air Force must prove that her dismissal furthered the military’s goals of troop readiness and unit cohesion.

The military can now appeal the 9th Circuit ruling to the U.S. Supreme Court.

Gates, a Republican, has agreed to stay on as Defense Secretary when President-elect Obama takes office. Obama has said he opposes “Don’t Ask, Don’t Tell” but has said he first wants to get a consensus from the Joint Chiefs of Staff.

The issue of gays in the military became a flash point early in the Clinton administration as Clinton tried to fulfill a campaign promise to end the military’s ban on gays. His efforts created the current compromise policy – ending the ban but prohibiting active-duty service members from openly acknowledging they are gay.

Last month more than 100 retired generals and admirals issued a statement calling for repeal of the ban.

Legislation to repeal “Don’t Ask, Don’t Tell”  was taken up in committee this year for the first time, but did not make it to a vote. The bill is expected to be reintroduced in the upcoming session of Congress.

Under DADT, two people every day are dropped from the military for being gay.

In the 15 years that DADT has been in force, more than 10,000 personnel have been discharged as a result of the policy, including 800 with skills deemed ‘mission critical,’ such as pilots, combat engineers and linguists.

The number of gay men and lesbians turned away by military recruiters is unknown.

A study conducted last year for the Servicemembers Legal Defense Network concluded that the U.S. military could attract as many as 41,000 new recruits if gays and lesbians in the military were able to be open about their sexual orientation.