Justice Department’s Continued Defense of “Don’t Ask, Don’t Tell” In Witt v. Department of Air Force

7/23/2010 – The Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today criticized the Justice Department’s continued defense of the discriminatory “Don’t Ask, “Don’t Tell” (DADT) law by filing a motion for summary judgment in Witt v. Department of Air Force.  In their motion, the Justice Department, after acknowledging in a footnote the president’s opposition to DADT as a policy matter, again vigorously defends the statute, and among its arguments is that Congress was reasonable in barring open service by lesbians and gays over concerns about deployments involving forced intimacy and a lack of privacy.  The Justice Department goes on to contend that it needs a uniform rule to apply for DADT discharges, and rather than agreeing with the higher burden imposed by the Ninth Circuit in the Witt case in 2008, argues for a standard that will allow the Defense Department to more easily remove dedicated service members based on their sexual orientation.    

“Once again, the Justice Department insists on defending an indefensible statute, and in ways that reinforce ridiculous, offensive stereotypes about LGBT people and demeans the service of the thousands of men and women discharged under DADT,” said HRC President Joe Solmonese.  “We agree on one point, though – there must be a uniform standard for the enforcement of DADT: repeal.  President Obama must fulfill his promise to the country and work with the Senate to finish the job repealing this arcane and discriminatory law now.”

The plaintiff in this case is Major Witt, an Air Force reservist nurse who entered the service in 1987 and was discharged under DADT after 18 years of service.  The district court originally dismissed the suit for a failure to state a claim and Major Witt appealed to the U.S. Court of Appeals for the Ninth Circuit.  That court held that each individual service member’s discharge under DADT must be necessary to “advance an important governmental interest,” and remanded the case to the district court for further analysis.  Today’s filing in the district court by the Administration requests that the district court acknowledge that Major Witt’s discharge was necessary in order for the Air Force to maintain military effectiveness and unit cohesion.  This defense of DADT is completely at odds with the President’s previous statements advocating for repeal of DADT.

In another district court in California, the trial for another DADT challenge – Log Cabin Republicans v. United States of America – is wrapping up.  In Log Cabin, the Administration is relying on similar arguments to support the DADT law.  HRC agrees with the plaintiffs in Witt and Log Cabin that DADT is unconstitutional and is optimistic that justice will prevail in both suits.

While the Justice Department defends DADT in the courts, Congress is moving forward with repeal legislation.  On May 27th, 2010, with support of the President, the Senate Armed Services Committee adopted an amendment to the Senate FY 2011 Defense Authorization bill to repeal DADT.  The amendment was offered by Sens. Joe Lieberman and Carl Levin.  Later that same day, Congressman Patrick Murphy offered an identical amendment to the House FY 2011 Defense Authorization bill that was adopted by the House of Representatives by a vote of 234 to 194.  The House passed its Defense Authorization bill on May 28th, 2010.  The Senate is expected to vote on its Defense Authorization bill soon, and the President has committed to signing repeal legislation into law.

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