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