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

Federal judge orders outed, decorated Air Force officer reinstated.

September 24, 2010, 10:09 AM

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.

Administration Handling of Case Angers Gay Rights Groups

Gay rights advocates, including the group Log Cabin Republicans, the lead plaintiff in the case, have criticized the administration for its handling of the case and for not doing more to bring Don't Ask, Don't Tell to an end.

"Many times on the campaign trail, President Obama said he would support the repeal of Don't Ask, Don't Tell," said Clarke Cooper, executive director of the Log Cabin Republicans. "Now that it's time to step up to the plate, he isn't even in the ballpark."

"What is most troubling is that the government's request for a stay [of the injunction] ignores the harm that Don't Ask, Don't Tell causes to current and potential members of our Armed Forces," said the plaintiffs' attorney, Dan Woods. "That is the saddest, most disappointing and, in light of the president's position, most hypocritical part of the objections."

Obama previously has called the military's policy toward gays "discriminatory" and pledged that ending it was a promise "that this administration is going to keep."

Justice Department lawyers defended Don't Ask, Don't Tell before Judge Phillips when the case went to trial in July, but they seemed only to go through the motions, calling no witnesses or offering other evidence for its defense -- arguing only that Congress, rather than a court, should decide policy.

"It'll be an interesting decision for our president to decide whether to appeal this case," said Woods. "He's said that Don't Ask, Don't Tell weakens national security, and now it's been declared unconstitutional. If he does appeal, we're going to fight like heck."

The case was brought in 2004 by the Log Cabin Republicans, a political organization that supports equal rights for gays and lesbians. The group has argued that the policy, which was put in place in 1993, violates gay service members' rights to free speech, open association and due process.

Judge Phillips agreed.

"The Don't Ask, Don't Tell [policy] infringes the fundamental right of United States service members in many ways," she wrote. "The Act denies homosexuals serving in the armed forces the right to enjoy 'intimate conduct' in their personal relationships ... [and] to speak about their loved ones while serving their country in uniform. ... It discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality."

"Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the government's important interests in military readiness and unit cohesion," Phillips wrote. "Defendants failed to meet that burden."

The Log Cabin Republicans estimate that 13,500 gay military service members have been ousted under the rules since 1994.

Seventy-five percent of Americans say gays who disclose their sexual orientation should be allowed to serve in the military, according to a recent ABC News/Washington Post poll, up from 44 percent 17 years ago.

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