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Posted at 1:50 PM ET, 12/13/2010

With repeal's fate uncertain, new suit challenges 'don't ask, don't tell'

By Ed O'Keefe

Three former service members discharged under the military's "don't ask, don't tell" law filed suit in federal court Monday, asking for reinstatement and arguing that the ban on gays serving openly in the military is unconstitutional.

The case, filed in San Francisco, is the first of several cases expected if Congressional efforts to end the law fail before the end of the lame-duck session. The Senate last week failed for the second time this year to move forward with legislation that would end the 17-year ban.

The three plaintiffs, Air Force Maj. Michael D. Almy, Air Force Staff Sgt. Anthony J. Loverde, and Navy Petty Officer Second Class Jason Knight, asked the U.S. District Court for the Northern District of California to reinstate them on the basis of the "Witt standard," a legal threshold established by the U.S. Court of Appeals for the 9th Circuit in 2008.

The appeals court ruled in a case brought by Air Force Reserve Maj. Margaret Witt, who challenged the ban's constitutionality. The appeals court ordered a lower district court to rehear Witt's case and ruled that the law violates the constitutional rights of gay and lesbian service members unless the government "advances an important government interest" by removing them. Citing the new standard, a district judge ordered Witt's reinstatement in September. She expects to be reinstated this month.

The new standard requires federal judges in the nine Western states that comprise the 9th Circuit to examine the military's decision to discharge individual service members, not whether the law is justified. It also puts the Obama administration in the tricky situation of defending a law the president and top military leaders personally oppose.

Almy, Knight and Loverde, each received dozens of military awards and decorations from the Air Force and Navy. They are among more than 14,000 troops discharged under the gay ban, according to military statistics.

Loverde, who served seven years with the Air Force, is now in Iraq working as a defense contractor and living on a military base.

"When I first got here, I was in a 20-man bungalow with community showers and we shared them with active duty troops," Loverde said, noting the irony of an openly gay man using military-owned shower facilities. He would not disclose the base's location for security reasons.

Loverde joined the lawsuit, because "I want back in," he said. "I never wanted to get out of the military, I enjoy the military, I believe it's a better place for my skills and talents. I don't get as much satisfaction on the contract side then I would if I was still serving."

"This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network (SLDN), which is representing the three plaintiffs. "This dispute can be resolved by Congress or by the courts. With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country."

SLDN is preparing two other lawsuits challenging "don't ask, don't tell" on behalf of gay and lesbian people who want to join the military and former service members discharged under the ban who want to join the reserves or National Guard. The cases will be filed early next year if Congress fails to end the ban this year, Sarvis said.

Senators introduced a new bill to repeal "don't ask, don't tell" last week, but a vote on the measure has not been set. Forty senators are cosponsoring the measure, and the bill's lead proponents, Sens. Joseph I. Lieberman (I-Conn.) and Susan Collins (R-Maine), continue to lobby colleagues for their support, according to aides.

Leave your thoughts in the comments section below

By Ed O'Keefe  | December 13, 2010; 1:50 PM ET
Categories:  Military  
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God Bless these patriots! If Congress won't act, I hope the courts will continue to do so and the Obama administration stops contesting their decisions.

A Concerned Veteran

Posted by: rocketman5 | December 13, 2010 2:51 PM | Report abuse

Comrades: So, the Courts become the final card, once the public votes in an 'unacceptable' manner, and the Congress fails to act to redress a grievous wrong. Please remember the Dredd Scott decision . . .

Posted by: rep15 | December 13, 2010 2:55 PM | Report abuse

Again, time wasted due to opinions formed years ago - time for the old political machine to retire and let the young excel. There should be term limits! This coming from an individual in his late 50s.

Posted by: Carl6652 | December 13, 2010 3:32 PM | Report abuse

The evil writings in Leviticus 20:13; which exists in the old testament & torah … were written long after Moses -- 600BC -- regarding “priestly rules” … expanded by the pope; homophobes and religious frauds to attack the gay community and never meant to apply to the public -- but to priests.

The pope and churches fully aware that Leviticus 20:13 applies to priests only … refuse to remove this stigma … maliciously persecuting gays. Kids bullied into suicide …! Being black or left-handed or being gay is just as natural.

If the black community or women had it written that they should be put to death; how would they like that?

Churches are committing hate crimes and more succinctly a violent criminal offence against a federally protected minority namely the gay community. It is actually a bigger moment in history … gays standing up for equality … soldiers being discharged are indeed exposing something far greater ... the realization that there is something far more evil at work -- hateful religion which should be discharged from society -- period. United States is supposedly fighting for democracy but within the U.S. they treat gays like secondary citizens.

It’s now time to shut down the churches with bibles about leviticus 20:13. Religion and the churches should now be exposed as a bigoted structure that gets away with hate mongering. It is a criminal offence to cause harm onto others physically or with written items … bibles have been getting away with this for ages. How would you like it … if hate speech was directed to your brother or sister as you sat in the pew; spewed by some better than thou religious lunatic with a hateful black book about Leviticus -- under his arm? Tony Perkins and his The Family Research Council's opposition to gay rights have landed the outfit onto a list of "hate groups,” like the KKK. Christian colleges should be classified as hate groups and shut down. UK Prime Minister Cameron is facing this issue; as we speak … regarding hateful muslim & islam extremes -- being taught to children at the mosques and schools.

The Right Honourable Prime Minister of Canada Jean Chretien told the Vatican that there was to be no cross erected over the Canadian Parliament buildings figuratively speaking; when the Pope demanded the Prime Minister go against gay rights. An Alberta bishop had the audacity to say that The Canadian Prime Minister would go to hell for going against the church. Such outrageous evil threats. The Right Honourable Prime Minister in return; basically told the Pope to go to Hell!

Perhaps the irony might be -- that the bogus hogus pogus hate-speech with his hateful leviticus 20:13 might bring the bible and torah into a banned status and the churches and synagogues shut down!

Posted by: GrantMacDonald1 | December 13, 2010 4:34 PM | Report abuse

It is a sometimes rare occurrence to fall in Love and to hold that person in your heart and be loved in return ... it is something that should be celebrated! If it is between two guys or girls all the better. It takes even more courage to defend that LOVE!

I am the son of a catholic father who never went to church and a protestant mother who took us to church and Sunday school. Onward christian soldiers; I think not. Such absolute drivel. To be manipulated by a santa claus; an easter bunny and worst of all a bogus cross?

It is written; so therefore it shall be? We are the chosen people? Such a wicked fantasy. To see the religious lunatics manipulate government and our lives is shameful. According to biblical law, a father can sell his daughter as a slave.
Bibles and the torah which includes leviticus -- should be immediately banned … for promoting hatred against minorities … namely the gay community and the crosses removed from all schools and churches.

One should appreciate each day of life and not expect another.

This holier than thou – written so there it shall be -- fallacy; must be stopped!
It is a criminal offence to cause harm onto others physically or with written items … the bible and torah have been getting away with this for ages.
This bogus religious filth should be banned. It exists as a tax exempt structure which discriminates against human rights. The pope, bishops and mormons are cult members promoting discrimination against minorities. Perhaps religious establishments have pushed too far from San Francisco to Washington -- and it may backfire to such a degree that the churches should be shut down!
By enjoying their tax exempt status and benefits from the state it also puts churches at the mercy of the state; to be forced to adhere to the human rights laws. Religion is thriving like a cancerous growth on society that should be stopped in its tracks; outlawed & banned.
There is no scientific evidence to prove any of the cross related bogus elements of christianity. Our early human ancestors; on this earth … go back more than 6 million years … 5,996,000 years before the Greeks, Romans and the Jews. Christianity is basically a 2010 year old fictional cult.
In the year 300 AD when Emperor Constantine, who to some was the first pope; went on to fabricate & market Christianity - a fantasy - which turned out to be one of the most hateful & evil concoctions ever perpetrated on the world.

Minority rights must be decided by a dignified judicial system and/or a compassionate government.
Tell them to take that cross and shove it where the sun don't shine and pay their taxes along the way before they take that cross down forever with its final station; extinction.

Posted by: GrantMacDonald1 | December 13, 2010 4:35 PM | Report abuse

The Vatican basically supported Hitler and religion is responsible for more corruption and violence in the world. Pope Ratzinger was involved in the Nazi youth. The Pope with his blatant witchcraft related to the bible and its hateful beliefs; tries to rule with extreme prejudice against a world … that may fall victim to religions' absolute evil. Many theologians state quite correctly that the birth; crucifixion; resurrection and other elements of christianity actually didn’t even happen! The pope is running a bigger fraud than Madoff’s $50 billion ripoff. Today’s evangelical extremists are like the nazis who cast others into ovens & are actually supremacists - who practice their bogus hocus pocus - and are trying to suppress and deprive others of their happiness and their legal rights in an open and proud society.
Einstein stated in a letter recently auctioned that the bible was a collection of primitive legends. He said believing in God was childish and he as a Jew is no different than another person and are not chosen by God.
Do you want to be lambs at the slaughter or be wise and reject religious cultist manipulation? Mean & nasty; run by evil and bogus religious cults from Rome or wherever. Is this the world you want? The pope talks about ending prejudice and hate; what a hypocrite! Religion is a crutch for the insecure.
Appreciate every day and if there is no tomorrow; then know that you were fortunate to have lived on this earth!
A great story pertains to a boy at a catholic school in Oshawa, Ontario who wanted to take his boyfriend to his school prom. The evil catholic school forbid this. A father of one of the boys is an employee with General Motors Canada and the courageous union leader Buzz Hargrove stood up for the boys’ rights. The boy took his case through the courts and because the evil catholic school was benefiting from government funding which demands equal rights void of discrimination; the judge ordered the school to allow the two young boys to attend together. Their limo arrived at their prom with adoring onlookers.
To think of Matthew Shepard choking on his own blood after being savagely beaten; virtually sanctioned by the church is evil beyond comprehension; yet is the same as boys being bullied into suicide; most likely being supported by the bullies parents’ religious cults. Bigotry and hatemongering against gays should be banned.
Abused gay people should definitely talk to or write to their parents; friends; teachers & school principal ... about the issue. Your story may save another person!

A special compliment to the Parents … Mothers , Fathers and other family members who have stood up for their sons, daughters, nieces and nephews who may be facing identity issues as they enter their teens … possibly being bullied; when in fact being gay or bi is part of nature.

A special compliment to the discharged soldiers ... you are the finest soldiers indeed ... in a battle and a war much greater than you know.

Posted by: GrantMacDonald1 | December 13, 2010 4:36 PM | Report abuse

rep15, before you display your ignorance further, please read Article III of our country's Constitution and show some evidence that you understand judicial review and the separation of powers.

Posted by: GordonCash | December 13, 2010 4:56 PM | Report abuse

If DADT is declared unconstitutional by the courts, get ready for the biggest class action lawsuit in US history. Thousands of soldiers will sue for lost wages, lost pensions and punitive damages because DoD violated their Constitutional rights. At about $1 million a pop, the cost to DoD will be over $10 billion.

Posted by: AxelDC | December 13, 2010 5:18 PM | Report abuse

Unless the government "advances an important government interest" How about the negative effect on troop safety and our efforts in Afghanistan. Gen. Patraeus’s counterinsurgency doctrine calls for securing civilian support as a priority. Openly gay troops would make this problematic because most Afghans consider homosexuality to be in violation of Islamic law - and because homosexuality is illegal in Afghanistan.

Posted by: ander204 | December 13, 2010 6:00 PM | Report abuse

Next thing you know the guys will be arguing over uniforms because they want to wear skits.

They'll sue for freedom of expression.

I think we need to stop this nonsense about gay this and gay that and keep people's sexual preferences to themselves.

There's a "yuck factor" when people force you to deal with their personal and private sex lives.

Posted by: lindalovejones | December 13, 2010 7:15 PM | Report abuse

Strictly speaking, the "Witt Standard" is not new. In 2008 the 9th Circuit Court of Appeals ruled that to be constitutional, discharges under DADT had to be done on a case-by-case basis documenting that "unit cohesion" was in fact affected.

It is worth noting that the Administration of GEORGE W. BUSH did NOT appeal.

Recently, the same judge who had originally ruled that Major Witt could be discharged ruled that under the Witt Standard, Major Witt should be reinstated. Even though there is no legitimate reason for doing so, given that the 9th Circuit Court has already ruled, the Administration of our "Fierce Advocate" has decided to appeal.

With respect to Ander204, most of our NATO allies, who have men and women fighting and, too often, dying in Afghanistan, allow openly gay (and openly straight) people to serve. I am not really sure that an IED or a sniper much cares about the sexual orientation of an American or an allied soldier whom it is trying to kill.

Posted by: edallan | December 13, 2010 7:23 PM | Report abuse

For LindaLoveJones:-

ACLU lawsuit: Military won't release rape records

The government prosecutes 8 percent of military sex offenders, while 40 percent of civilian sex offenders are prosecuted, according to the lawsuit. Post-traumatic stress disorder claims related to sexual trauma are often denied for failing to prove the case, even when men and women in uniform have been diagnosed with the disorder, the lawsuit said.

. . . . . .

Maybe straight guys shouldn't be allowed to serve either??? Over 10% of Army and Marine recruits need waivers for physical, mental, and/or emotional health and/or histories of substance abuse and/or histories of involvement with crime, up to and including rape and manslaughter.

Posted by: edallan | December 13, 2010 7:32 PM | Report abuse

What Constitutional right is being violated? A right, not a feeling.

Posted by: MizAmerica | December 13, 2010 7:51 PM | Report abuse


Good luck trying to get into the military with a waiver. They are only granted to minorities now to meet quota's. The Marines are 2 full years ahead of recruiting numbers, the pipeline to Boot camp is clogged, one yr. wait after enlistment. Army does not even accept GED's anymore. My middle son just went to MEPS this month, bus was full and only he and one other kid were HS, the rest were college grads.

Posted by: MizAmerica | December 13, 2010 7:55 PM | Report abuse

"Repeal's fate uncertain" ... what a crock. It is certainly not going to be repealed in the next 4 days, which ends the lame duck session of Congress. This repeal of Don't Ask Don't Tell dies in the Senate this Friday just as I have been warning silly Dims for the past two months.

Posted by: screwjob23 | December 13, 2010 9:22 PM | Report abuse

DADT's days are numbered. Which side of history will you be on? Remember the pictures of those people spitting on a little black girl who just wanted to go to school.

Posted by: dwaldman | December 13, 2010 10:19 PM | Report abuse

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