Judge Rules Firing of Lesbian Under 'Don't Ask Don't Tell' Unconstitutional

WASHINGTON, Sept. 24, 2010— -- A federal judge in Washington state ruled Friday that the military discharge of a decorated Air Force officer because she is gay violated her constitutional rights and that she must be given her job back as soon as possible.

Maj. Margaret Witt was discharged in 2004 under the Don't Ask, Don't Tell policy after her superiors learned of her relationship with a civilian woman. She later sued to get her job back.

The decision by U.S. District Judge Ronald Leighton is the second by a federal judge in recent weeks to cast the policy as unconstitutional and follows a failed attempt by the Senate Tuesday to overturn the controversial law.

The cases also have put the Obama administration in a political bind, caught between a duty to defend established law and a promise to have the law overturned. Obama has said he opposes the policy but prefers it be resolved legislatively and after the Defense Department completes its review in December.

On Sept. 9, U.S. District Court Judge Virginia Phillips ruled that the ban on openly gay and lesbian men and women serving in the military was unconstitutional and should be ended immediately.

But in a court filing Thursday night, government lawyers asked Phillips to grant them a "reasonable" amount of time to consider her intent to issue an immediate injunction.

"A court should not compel the executive to implement an immediate cessation of the 17-year policy without regard for any effect such an abrupt change might have on the military's option, particularly at a time when the military is engaged in combat operations around the globe," the Justice Department wrote to Phillips.

Lawyers stopped short of indicating whether or not the government plans to appeal Phillips' ruling that Don't Ask, Don't Tell violates the U.S. Constitution.

Phillips now is deciding whether an injunction should take effect.

"The Justice Department is defending the statute as it traditionally does when acts of Congress are challenged," a Justice Department spokesman said.

"This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT," said White House press secretary Robert Gibbs in a statement. "Indeed, it clearly shows why Congress must act to end this misguided policy."

The Senate blocked an attempted conditional repeal of the policy earlier this week but could reconsider the legislation after the midterm elections in December.