Fate of 'don't ask' ban is still being debated

By Ed O'Keefe
Washington Post Staff Writer
Thursday, September 23, 2010

The fate of the military's "don't ask, don't tell" policy continues to unfold in two federal courtrooms on the West Coast despite the failure of efforts in the Senate this week to repeal it.

In a case brought in California by the pro-gay Log Cabin Republicans, U.S. District Judge Virginia A. Phillips ruled Sept. 10 that the law, which bans gays from serving openly in the military, violates due process and First Amendment rights and has a "direct and deleterious" effect on the armed forces. She gave the federal government until Thursday to appeal.

Advocates for ending the 17-year ban are calling on the Obama administration to forgo an appeal. Tracy Schmaler, a Justice Department spokeswoman, declined to comment Wednesday on whether the government will do so.

Gay rights groups said the government has no obligation to appeal. Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that is devoted to repealing "don't ask, don't tell," cited a 2003 Supreme Court decision that struck down a Texas sodomy law because it restricted a person's right to sexual privacy.

"Judge Phillips recognized that 'don't ask, don't tell' can no longer be justified under current constitutional doctrine, and President Obama is not required to argue otherwise," Mazur said. "He need not defend laws that are based on old, discredited constitutional assumptions."

Joe Solmonese, president of the Human Rights Campaign, argued that government lawyers should not appeal the ruling because Obama and Defense Secretary Robert M. Gates oppose the ban.

"The leaders of our nation's armed forces understand that ['don't ask, don't tell'] serves no purpose in the laws of our nation; it is time for the DOJ to stop defending this law," Solmonese said in a letter Tuesday to Attorney General Eric H. Holder Jr.

In another case, a federal judge in Washington state is expected to rule Friday in the case of Margaret Witt, a flight nurse who was discharged from the Air Force because she is a lesbian. Witt is arguing that she should be reinstated to the Air Force Reserve.

U.S. District Judge Ronald B. Leighton said Tuesday that he may have to reinstate her because of orders he received from an appeals court when it sent Witt's case back for reconsideration.

Leighton rejected Witt's claims in 2008 that the military violated her rights by discharging her under "don't ask, don't tell." But the U.S. Court of Appeals for the 9th Circuit returned the case to Leighton, ruling that the military cannot discharge gays unless it is necessary to further military goals.

The 9th Circuit "put a pretty heavy burden on the government to justify the policy," said Dale Carpenter, a University of Minnesota law professor who specializes in legal issues related to sexual orientation.

"There are two questions: whether that standard ordered by that court is the right one and whether the government can justify 'don't ask, don't tell' using that heightened standard," he said.

Gay activists predict that the government's legal defense of the law will fail, and say that other gay service members will challenge their discharges if Witt wins.

But Timothy J. Haggerty, a professor at Carnegie Mellon University who helped write the 1993 study that led to "don't ask," cautioned that efforts to repeal the law would prove more useful than legal proceedings if supporters garner enough political support.

"Our culture is significantly different than it was 17 years ago," Haggerty said. "There's been a generational shift and I think that's a lot of what this is about."

On Capitol Hill, Senate Democrats would not say on Wednesday when they plan to reconsider the annual defense authorization bill or whether it will include the "don't ask" repeal. On Tuesday, they fell short of earning the 60 votes necessary to start debate on the measure, which contained the repeal, by a vote of 56 to 43."I'm going to do everything I can," said Senate Armed Services Chairman Carl Levin (D-Mich.), a leading advocate for ending the ban.

Staff writer Jerry Markon contributed to this report.

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