Originally published on Advocate.com December 13 2010 12:45 PM ET
Three decorated service members discharged under “don’t ask, don’t tell” have sued the government in what one advocate says may be the first of several such lawsuits should Congress fail to repeal the antigay policy soon.
Air Force major Michael Almy, Air Force staff sergeant Anthony Loverde, and Navy petty officer second class Jason Knight are all seeking reinstatement in the armed forces, claiming that their constitutional rights were violated. The military, they claim, failed to prove how it had protected morale and readiness by discharging them from their units; on the contrary, officials ignored evidence that the discharges would harm unit cohesion.
Filed Monday in the U.S. district court for Northern California, the lawsuit is now one of several legal challenges to DADT and may be buoyed by court victories earlier this year against the 17-year-old policy. In a case brought by the Log Cabin Republicans, a federal judge in Riverside, Calif., ruled “don’t ask, don’t tell” unconstitutional in September and later issued a worldwide injunction banning enforcement of the policy — one eventually overturned by the U.S. court of appeals for the ninth circuit as the Justice Department pursues an appeal in the case.
Later that month, a federal judge in Tacoma, Wash., ordered Maj. Margaret Witt, an equally decorated flight nurse discharged under DADT, to be reinstated, citing that the policy violated Witt’s rights under the due process and equal protection clauses of the U.S. Constitution.
The Justice Department has also appealed Witt’s case, one that spawned a crucial precedent in the ninth circuit: In 2008 the appeals court ruled that the government must show that discharging a gay service member is vital to maintain a unit's "good order, morale, and discipline." Two of the three plaintiffs in the new lawsuit reside in California, which is under the ninth circuit’s jurisdiction.
“It’s the Witt case that makes this case possible,” said lead attorney M. Andrew Woodmansee, who filed the suit along with attorneys for Servicemembers Legal Defense Network. “These three individuals have been champing at the bit to get back into the military. They want nothing more than to put their uniform on and go back and serve.”
SLDN executive director Aubrey Sarvis said his organization has been working on the filing for several weeks with Woodmansee, a partner in Morrison & Foerster’s San Diego office (Woodmansee also represents Col. Victor Fehrenbach, who is fighting discharge proceedings under DADT).
“We thought it was important to launch this [lawsuit] today on the merits,” Sarvis said Monday, “but secondly to underscore to the Senate today as they return to Washington that litigation is going to continue if they do not act in the lame-duck session.”
Sarvis clarified, however, that “in no way should the filing be read that we’re giving up” on repeal efforts on Capitol Hill, where senators Joseph Lieberman and Susan Collins introduced a stand-alone repeal bill Friday. A procedural vote on the defense bill, which includes DADT repeal, failed Thursday in the Senate.
“The suit, in part, is designed to say to senators, ‘You really should take the concerns of [Defense] Secretary [Robert] Gates and DOD general counsel Jeh Johnson very seriously,’” Sarvis said.
The service members in the lawsuit are not only suing to be reinstated: They are also seeking retirement credit for the period in which they have been separated from the armed forces. Almy, 40, is further seeking to be reinstated at the rank of lieutenant colonel, for which he was recommended for promotion during his discharge process. “Assuming we win everything in the lawsuit, I would come fairly close to getting back to where I was in my career,” said Almy, who was discharged in 2006. “Nothing would fully repair the damage done, but it would be a huge step and would get me closer to where my peers are in their careers.”
Frustration with congressional inaction also moved 31-year-old Loverde — who was discharged in 2008 after he came out to two superior officers — to become a plaintiff in the suit.
“With the delays in the Senate, it seems like the next logical step,” said Loverde, who currently works in Iraq for a defense contractor. “I want to go back in the military, so I jumped on it.”
According to Sarvis, the lawsuit is a strategic step for service members who wish to return to active duty following discharge. A possible second wave of litigation could include former service members seeking to join the reserves or National Guard units.
The Justice Department has 60 days to respond to the legal complaint, available here.