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'Don't ask, don't tell': The legal options

By Ed O'Keefe

Eye Opener

The U.S. Senate failed to move on "don't ask, don't tell" (at least for now), so attention is turning to two federal courtrooms out West.

These are complicated legal issues, but here's a general synopsis of where things stand:

A federal judge said he plans to rule on Friday in the case of Margaret Witt, an Air Force flight nurse discharged for being gay who wants to be reinstated to the Air Force Reserve.

U.S. District Judge Ronald B. Leighton said Tuesday that he may have no choice but to reinstate her, because of orders he received from a higher appeals court that sent Witt's case back to him for reconsideration.

Leighton rejected Witt's claims two years ago that the military violated her rights by discharging her under "don't ask, don't tell." But the Court of Appeals for the Ninth Circuit ruled that the military can't discharge gay people unless firing them was necessary to further military goals.

That's a new legal standard that conservative activists consider inconsistent with the original spirit of the "don't ask" law and called on the government to file a petition of certiorari to the U.S. Supreme Court to reconsider the case.

The Ninth Circuit's decision also complicates another federal case in California, where District Judge Virginia A. Phillips ruled two weeks ago that "don't ask, don't tell" is unconstitutional. The Justice Department has until Thursday to appeal the decision and has yet to indicate how it plans to proceed.

Gay rights advocates want the Obama administration to let the ruling stand, figuring it's a good way to end the discharges of gay troops if the Senate won't act. Conservative activists once again say the government should have appealed the Witt case since it complicates the California case.

But more neutral observers anticipate the government will appeal and then end its efforts if/when lawmakers include repeal of "don't ask" in the final version of the defense policy bill later this year.

Bottom line: Whether it's through legislation or the courts, the issue of "don't ask, don't tell" isn't over. Stay tuned.

Leave your thoughts in the comments section below

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After 40 years, FBI hunt for elusive bomb suspect heats up: A prominent figure in the annals of domestic terrorism, Leo Burt is virtually unknown to the general public.

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GAO report: OSHA failing to protect whistleblowers: The stakes have only grown for workers and the public over the last decade, as OSHA has expanded its mission.

Clinton presses Arab nations to bolster aid to Palestinians: The Palestinian Authority has received much of its budget support from the European Union and the United States.

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By Ed O'Keefe  | September 22, 2010; 7:30 AM ET
Categories:  Eye Opener, Military  
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Next: Lincoln Memorial hosting a naturalization ceremony


The U.S. continues it's Dark Ages policies.

Posted by: jckdoors | September 22, 2010 8:44 AM | Report abuse

"Stop Loss Order" from Obama would allow Gays to remain in the Military.

It's not rocket science and Obama can do it without Congressional approval.

Posted by: ddoiron1 | September 22, 2010 9:33 AM | Report abuse

What knucklehead in the OBAMA White House sent his pick for Marine Corps Commandant up to the Hill for a confirmation hearing knowing he would publicly oppose DADT amendment repeal on the day the vote was taken? ....R's must be laughing at this SNAFU. Even Susan Collins, a closeted Lesbian who supported the amendment opposed the lard layered on the bill and the D's 'just say 'no'' position to allowing R's to add their own amendments.

Posted by: Common_Cents1 | September 22, 2010 11:53 AM | Report abuse

Ed, just sign up. Obama won't kick you out and Biden won't kick you out. No worries.

Posted by: jiji1 | September 22, 2010 4:54 PM | Report abuse

When will Congress get with the program? The rest of the population supports gay rights. Support is growing in every single demographic, including conservatives. They need to get on board! Excellent analysis of the issue can be found here, worth the read:

Posted by: BryceCovert | September 22, 2010 5:32 PM | Report abuse

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