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Don’t Ask, Don’t Tell foes plan to fight on in court, despite policy’s repeal

Don’t Ask, Don’t Tell foes plan to fight on in court, despite policy’s repeal

By Karen Sloan

The National Law Journal

December 20, 2010

Don’t Ask, Don’t Tell is on its way out, but the litigation surrounding the policy will stick around for a little bit longer.

The Log Cabin Republicans — which first challenged the constitutionality of the policy in 2004 — said it wouldn’t pull its lawsuit until Defense Secretary Robert Gates certifies the repeal.

“Until the Secretary of Defense certifies that servicemembers are not going to be discharged under this policy, Log Cabin Republicans continue our appeal to the 9th Circuit,” said Clarke Cooper, the executive director of the gay rights group. He noted that Gates has indicated that he would certify repeal only with the approval of each service chief. Commandant of the Marine Corps James Amos supports retaining the policy, and that may “cause further problems.”

Any certification letter must stipulate that changes to military policy and regulations have been made, and that those changes won’t hurt the military’s readiness. After certification is completed, the repeal would go into effect in 60 days, said White & Case partner Dan Woods, who represents the Log Cabin Republicans.

“The repeal is certainly helpful for our case,” Woods said. “The only problem is that it isn’t effective for many, many months.”

U.S. District Court Judge Virginia Phillips ruled on Sept. 9 that Don’t Ask, Don’t Tell violates the First Amendment rights of gay and lesbian servicemembers. The government appealed the ruling and oral arguments are scheduled for Feb. 22 before the U.S. Court of Appeals for the 9th Circuit.

“I expect that the government will want all the litigation related to Don’t Ask, Don’t Tell stayed,” Woods said. “I’m not sure how we can agree to that without some conditions. We might agree to stay if the government won’t discharge people. We don’t yet know what the repeal means, and neither does the government.”

The status of another Don’t Ask, Don’t Tell lawsuit in Washington state is also in question. U.S. District Judge Robert Leighton ruled on Sept. 24 that the U.S. Air Force violated the due process rights of former Maj. Margaret Witt, who was discharged in 2004 for being a lesbian. The Justice Department appealed that decision in late November. Witt is represented by Sarah Dunne, an attorney with the ACLU of Washington.

“It’s Monday morning and I’ve heard no word or comment from the Justice Department on the appeal,” Dunne said. “I think it’s too soon. I certainly hope they drop the appeal. We feel like the repeal of Don’t Ask, Don’t Tell is a wonderful moment.”

The Justice Department did not respond to calls for comments on the status of the Witt or Log Cabin Republican cases. The repeal bill also does not address whether servicemembers who were discharged under the policy can be reinstated.

Karen Sloan can be contacted at ksloan@alm.com.

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