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“Don’t Ask, Don’t Tell” Litigation Continues; Senate Consideration of Repeal Looms

Only last week, we saw a federal district court in California declare the “Don’t Ask, Don’t Tell” (DADT) law unconstitutional.  Yesterday, another DADT case rose to the forefront of the national debate on DADT.  In opening arguments before a federal district court in Washington, the attorney for Major Margaret Witt, an Air Force reservist nurse who was discharged under DADT after 18 years of service, argued for Major Witt’s reinstatement. 

Major Witt’s case is before the district court after being remanded by the U.S. Court of Appeals for the Ninth Circuit in 2008. In the 2008 decision of Witt v. Department of Air Force, the Ninth Circuit found that the government must prove that Major Witt’s DADT discharge was necessary to “advance an important governmental interest (this is often referred to as the “Witt standard”).  Under the Witt standard, the military is required to demonstrate that each individual discharged under DADT, such as Major Witt, has a negative impact on his/her unit because of his/her sexual orientation. 

The district court will determine if Major Witt’s sexual orientation negatively impacted unit cohesion.  If it is determined that Major Witt did not negatively impact unit cohesion, she has requested to be reinstated in the Air Force.  This decision is expected to pave the way for how the Witt standard will be applied in the Ninth Circuit – and how discharges and reinstatements may be reviewed under the standard. While DADT litigation continues in the courts, Congress is moving forward with legislation to repeal the failed law.  Late yesterday, it was reported that Senate Majority Leader Harry Reid (D-NV) intends to schedule a vote next week on the National Defense Authorization bill, which contains DADT repeal language.  The House of Representatives passed its DADT repeal-inclusive National Defense Authorization bill in late May.

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