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

By Ed O'Keefe
Washington Post Staff Writer
Tuesday, December 14, 2010; A02

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

The case, filed in San Francisco, is the first of several that are expected if efforts to repeal the law fail in Congress during the lame-duck session. Legislation that would end the ban failed for the second time this year to move forward in the Senate.

The three plaintiffs - Michael D. Almy, formerly an Air Force major; Anthony J. Loverde, who had been a staff sergeant in the Air Force; and Jason Knight, a former Navy petty officer second class - asked the U.S. District Court for the Northern District of California to reinstate them on the basis of the "Witt standard," established in 2008 by the U.S. Court of Appeals for the 9th Circuit.

In a case brought by former Air Force Reserve major 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 service members unless the military "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 as the Justice Department appeals the decision.

Almy, Knight and Loverde are being represented by the Servicemembers Legal Defense Network, which plans to file other cases early next year if Congress does not end the ban this year, Executive Director Aubrey 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 co-sponsoring 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, aides said.

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