Courts, public opinion chipping away at ‘don’t ask, don’t tell’

In two cases, federal judges have ruled against the 'don't ask, don't tell' law banning openly gay men and women from serving in the US military. Most Americans favor repeal of the law, but it's a tough fight in Congress.

Ted S. Warren/AP
Margaret Witt with Air Force Lt. Col. Victor Fehrenbach at the federal courthouse in Tacoma, Wash., Friday. A federal judge ruled that Witt, a flight nurse discharged from the Air Force for being gay, should be given her job back as soon as possible. Fehrenbach, a decorated combat fighter pilot, is fighting his own discharge from the Air Force under don't ask, don't tell.

In what's being seen as a legal chipping away at don't ask, don't tell, US District Judge Ronald Leighton ruled Friday that former Air Force Reserve Maj. Margaret Witt, a military nurse, should be "reinstated at the earliest possible moment." Maj. Witt had been forced out of the military because of her sexual orientation.

The Witt ruling in Tacoma, Washington, comes just weeks after a federal judge in California struck down as unconstitutional the 1993 law banning openly gay men and women from serving in the US military.

The essence of the argument for don’t ask, don’t tell is that having homosexuals in the ranks of military units undermines morale and unit cohesiveness. In her ruling earlier this month, Judge Virginia Phillips rejected that argument.

“The 'don’t ask, don’t tell' act infringes the fundamental rights of United States service members in many ways,” she wrote. “In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the 'don’t ask, don’t tell' act was necessary to significantly further the government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”

Since the law was enacted as a compromise reached with senior military officials early in the Clinton administration, some 13,000 service members have been discharged under don’t ask, don’t tell.

While this week’s ruling for Major Witt does not address the constitutionality of don’t ask, don’t tell as it applies to all service members, it put the onus on the US government to prove its case for discharging Witt, a 19-year veteran decorated for her service.

Judge Leighton called Witt an "exemplary officer" and said "good flight nurses were hard to find." Speaking to Witt, he said, "You have been and continue to be a central figure in a long-term, highly-charged civil rights movement."

“Wounded people never asked me about my sexual orientation,” Witt said in a statement. “They were just glad to see me.”

The two federal cases put the Obama administration in a political bind. As a candidate, President Obama vowed to end don’t ask, don’t tell. Since then, both Defense Secretary Robert Gates and Joint Chiefs of Staff chairman Adm. Mike Mullen have agreed that the law should be done away with. The Pentagon is studying the issue, including a survey of service members.

In the California case, Justice Department lawyers this week cited military readiness in asking Judge Phillips not to enforce her ruling with an immediate military-wide injunction banning the discharge of gay service members.

"A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe," federal attorneys said in their filing.

But in a statement to the Associated Press, White House press secretary Robert Gibbs said, “This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy.”

Senate Democrats tried unsuccessfully this week to attach repeal of don't ask, don't tell to the annual defense spending bill.

Polls show a solid majority of Americans support allowing openly gay men and women to serve in the military. Those in uniform are less supportive of repeal, but recent polls show increasing support for it – particularly among younger service members.

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