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“Don’t Ask, Don’t Tell” — Down, But Not Out

Ian S. Thompson,
Senior Legislative Advocate,
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September 28, 2010

If you’ve been following the news lately, you know that the discriminatory and counterproductive “Don’t Ask, Don’t Tell” (DADT) policy has suffered some pretty serious blows. On Friday, a federal court in Washington ordered the Air Force to reinstate ACLU of Washington client Maj. Margaret Witt, a decorated flight nurse who was dismissed under DADT in 2006. After six days of trial, Judge Ronald Leighton found that Maj. Witt’s sexual orientation had no negative impact on either unit morale or cohesion (central arguments consistently cited by supporters of the policy). As Maj. Witt stated following the ruling, “Wounded people never asked me about my sexual orientation. They were just glad to see me.”

On September 9, U.S. District Court Judge Virginia Phillips ruled, in a case brought by the Log Cabin Republicans, that DADT was an unconstitutional violation of the rights of lesbian, gay and bisexual service members. As part of her ruling against DADT, Judge Phillips found that the Log Cabin Republicans were entitled to a permanent injunction against DADT. Late last week, the Justice Department pushed back against the injunction, calling it “untenable” and asked Judge Phillips to continue enforcing the current law against open service. However, regardless of the ultimate conclusion to these cases, the district court victories send the unmistakable message that DADT is on very rocky ground.

While the Senate failed to clear a procedural hurdle requiring 60 votes last week in order to bring a defense policy bill to the floor (which contains language allowing for the repeal of DADT), the issue is very likely to once again be on the floor of the Senate following the midterm elections on November 2. DADT repeal has already been approved by both the Senate Armed Services Committee and the House of Representatives, so the one remaining challenge to overcome is a successful vote by the full Senate. This could come in a matter of weeks.

Also looming in the near future is the release on December 1 of the Pentagon’s DADT Comprehensive Review Working Group report on the plans to implement a successful repeal of the policy barring open service by those who are lesbian, gay or bisexual. Some opponents of DADT repeal in Congress, led by Senate Armed Services Committee Ranking Member Sen. John McCain (R-Az.) have attempted to use this date as a reason to delay final congressional action on repeal. However, it is important to point out that this report is not examining if to repeal DADT, but rather how a transition to open service will best be implemented. DADT repeal will not take place before this study is complete, so to use it as an excuse to prevent congressional action is simply a delay tactic by opponents of repeal. Action by proponents of repeal will be critically important over the next few weeks in ensuring a successful Senate floor vote.

DADT has indeed suffered one serious blow after another throughout 2010 — both by Congress and the courts. However, it is important to keep in mind that it is still the law of the land, and otherwise talented and dedicated service members, men and women, continue to be fired simply because of their sexual orientation. This senseless and destructive discrimination must end once and for all. Please join with the ACLU in urging Congress to end DADT this year.

CORRECTION: An earlier version of this post stated the judge in the Witt case was Robert Leighton. That was incorrect. His name is Ronald Leighton.