'Don't ask, don't tell': The legal options
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.
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| September 22, 2010; 7:30 AM ET
Categories: Eye Opener, Military
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