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Friday, October 1, 2010

Opponents of the Government’s “Don’t Ask, Don’t Tell” Policy Win Second Major Legal Victory in the Past Month

Opponents of the government’s “Don’t Ask, Don’t Tell” policy won their second legal victory in a month last week when a federal judge in Washington state ordered the Air Force to reinstate Maj. Margaret Witt, a decorated, lesbian flight nurse. Judge Ronald Leighton, following a six-day trial, ruled that the nurse’s discharge advanced no legitimate military interest and in fact both hurt morale in her unit and weakened her unit’s ability to carry out its mission.[1]

Sarah Dunne, legal director of the ACLU of Washington, which represented Maj. Witt, said that the ruling established an important precedent in the Ninth Circuit by requiring the federal government to prove that soldiers discharged under the policy undermined military effectiveness:

“If [servicemembers discharged in the Ninth Circuit choose to do so], they’ll have an opportunity to go to court and show that their sexual orientation had no effect, no negative consequence on their unit or the military’s ability to do their mission or do their job.”[2]

In the other case decided in the last month, a federal judge in California ruled that “Don’t Ask, Don’t Tell” policy violates the First Amendment rights of lesbians and gay men, and that it has had a “direct and deleterious effect’’ on the military.[3]

These recent decisions highlight the federal judiciary’s role in ensuring equal protection under the law and President Obama’s responsibility to nominate judges who will uphold that principle. There are currently eighty-four vacant district court judgeships across the country, presenting President Obama with an opportunity to do just that.

For a full breakdown of judicial selection during the Obama Administration, see the Alliance for Justice’s recent report, Judicial Selection During the Obama Administration: The First 20 Months, which is available on our website at http://www.afj.org/check-the-facts/nominees/afj-report-state-of-the-judiciary-obama-at-20-months.pdf.

[1] Gene Johnson, Judge orders lesbian reinstated to Air Force, Seattle Post-Intelligencer, Sept. 24, 2010, available at http://www.seattlepi.com/local/6420ap_us_gays_in_military.html.
[2] Igor Volsky, Witt Says She’s Ready To Return To Air Force, ACLU Hopes More Soldiers Will Now Challenge Discharges, Thinkprogress.com, http://wonkroom.thinkprogress.org/2010/09/27/witt-msnbc/.
[3] Phil Willon, Judge declares U.S. military's 'don't ask, don't tell' policy openly banning gay service members unconstitutional, L.A. Times, Sept. 9,. 2010, available at http://latimesblogs.latimes.com/lanow/2010/ 09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html.

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