More Discharged Service Member File Suit in Ninth Circuit
Today, three highly decorated service members discharged under “Don’t Ask, Don’t Tell” (DADT) filed suit in federal district court seeking re-instatement and challenging the constitutionality of DADT. In their complaint, which was filed before a Ninth Circuit district court in California, the three plaintiffs assert that the military bears the burden of proving that the sexual orientation of each discharged service member had a negative impact on the military. The complaint states that if the military cannot fulfill this burden, the three plaintiffs should be re-instated in their respective branches and provided credit toward retirement for the period they were unconstitutionally discharged.
A similar argument was asserted before a different Ninth Circuit district court earlier this year in Witt v. Air Force. The district court in Witt determine that the military failed to prove that Major Margaret Witt’s sexual orientation had a negative impact on the military, and provided for her re-instatement in the Air Force. Also, occurring only months ago, a different Ninth Circuit district court declared DADT unconstitutional in Log Cabin Republicans v. United States. The litigation in each of these decisions is ongoing, but illustrates the rise of litigation regarding DADT – particularly in the Ninth Circuit.
Earlier this year, the President expressed his support for repealing DADT and the House passed repeal legislation. However, only last week, the Senate failed to take action on the Defense Authorization bill, which contained language that would lead to a repeal DADT. Until Congress moves forward to legislatively repeal DADT, discharged service members are likely to continue to bring suits challenging the constitutionality of DADT and DADT discharges.
HRC applauds plaintiffs Mike Almy, Anthony Loverde, and Jason Knight for their courage in challenging the DADT law, as well as Servicemembers Legal Defense Network and Morrison & Foerster LLP for filing this suit on behalf of the plaintiffs.