Frontlines: The Latest from OutServe-SLDN

From California to New York—Next Stop, Washington D.C.

This week New York’s governor announced that his state would recognize same-sex marriages conducted in other jurisdictions, including California. In his latest Huffington Post blog Aubrey Sarvis talks about American's changing attitudes towards lesbians, gays and bisexuals and how growing acceptance may impact legislation to repeal “Don’t Ask, Don’t Tell” “Attitudes are definitely changing, and changing fast,” writes Sarvis. Click here to read about and comment on recent LGBT civil rights victories in California and New York, and how those developments may affect opinions in Washington, D.C.

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05-30-08 Comment (1)

The Urgent Need for Common Sense

“The number of U.S. troops diagnosed by the military with post-traumatic stress disorder (PTSD) jumped nearly 50 percent in 2007 over the previous year,” the Washington Post’s Ann Scott Tyson reported this morning, citing Pentagon data. The dramatic increase is concurrent with longer and repeated combat tours that increasing numbers of men and women are required to serve in Iraq and Afghanistan. As the United States continues to wage war on two fronts, the need for military personnel increases. As a consequence, the military has taken extraordinary steps to expand its recruiting universe and retain trained service members. Convicted felons are granted moral waivers, soldiers with serious medical conditions are sent back to the Middle East, educational standards have fallen as signing bonuses have increased – all in an effort to find enough men and women to fight our country’s battles. And yet the U.S. Congress does not allow the armed forces to recruit one particular class of Americans, simply because they are lesbian, gay, or bisexual. Because of “Don’t Ask, Don’t Tell” 12,000 gay service members have been dismissed out of hand. Those who remain in uniform must carry the extra burden of extended tours, more frequent deployments, and the increased risks of physical and psychological damage. When will common sense prevail? When will Congress repeal “Don’t Ask, Don’t Tell?” Click here to urge your member of Congress to join the movement to repeal “Don’t Ask, Don’t Tell.” Everyone benefits when everyone is included. -Victor Maldonado

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05-28-08 Comment (0)

Out Front in Colorado

During his recent visit to Colorado, SLDN executive director Aubrey Sarvis talked to Matt Kailey, managing editor of Out Front Colorado, about "Don't Ask, Don't Tell" and why efforts in Colorado to lift the ban are important if we are ever to get the law repealed. The interview takes on the history of the ban as well as the possible future of the law under a new administration. You can read the interview in its entirety by clicking here. -Victor Maldonado

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05-28-08 Comment (0)

Remembering Our Friend Dave Jenks

So many lives, so terribly cut short! On this past Memorial Day weekend we remember all those young men and women killed in the wars in Iraq and Afghanistan, and the thousands and thousands more who died in earlier wars. The memorials of our city have been crowded these past few days with Americans who have come to pay tribute to those who gave their lives in service to their country – their country and ours. We owe them a debt beyond tears or measure. At SLDN we hold a special place in our hearts for the unknown number of those heroes who were lesbian, gay, bisexual or transgender – and forced to die as they had lived: in silence about that critical part of their lives. But we also hold a special place in our hearts this Memorial Day week for David S. Jenks, whose life was suddenly, shockingly cut short on the morning of May 19. He was 45 years old, in the full prime and vigor of his life. He had shown no previous signs of illness. His age and his vitality made his death all the more shocking to those who knew and loved him. I knew Dave for more than twenty years. We worked together on a number of real estate and legal transactions. Dave was the ultimate professional, exceedingly competent and highly successful. He cared about what he did and he cared about those he worked with. A handsome man, he was disarming and fun and a delight to be with whatever the occasion – over drinks and dinner in the Hamptons, at the Delaware beaches, or at his home near Washington Circle. SLDN supporter, real estate agent and lawyer Hugh Oates put it this way: “Dave was first rate. In our real estate world of too much stress and tension, he brought everyone to the table to make it all work, and he did it with ease and style.” Dave was one of SLDN’s strongest supporters. After George Washington University law school he served as captain in the Judge Advocates General Corps of the United States Army. He knew from direct experience what it was like to serve in the Army and be forced to keep an important and deeply personal part of himself hidden from his comrades. That is one reason why he was such an active and consistent supporter of SLDN, and why his family has requested that in lieu of flowers contributions be made to this organization. A memorial service will be held at 3 p.m. today at the Luther Place Memorial Church, 1226 Vermont Avenue, NW. Also tonight, the Duplex Diner, where Dave’s was a familiar smiling face, will donate all of its bar tips and a portion of its proceeds to SLDN as his friends gather to trade stories about this vibrant, vital man who was rarely seen without a smile on his face. Dave was an active member of the D.C. Bar and of the Washington real estate community. He founded the Avenue Title Group where he worked closely with his partner in life as well as in business, David G. Helfrich. But our purpose here is not to write an obituary. You can find the facts of his life and also sign a guest book in the Washington Post and in the Blade. We are here to mourn the passing and celebrate the life of a dear friend. “He had a huge zest for life,” his friend Wes Combs and SLDN supporter said. “He lived in a big way.” All his friends agreed with that. “And he was extremely generous with his time and advice.” He was extremely generous in countless ways to SLDN. He was one of our staunchest supporters, and we will miss him greatly for all of those reasons but especially because the smile on his face brought smiles to our own. The joy he brought to life was contagious. We are all better for having known him. -Aubrey Sarvis

05-27-08 Comment (2)

MEMORIAL DAY—What it Means to Me

By definition, Memorial Day is a time to remember. One day, out of 365, set aside to remember all those who came before that paid the ultimate price so I could live as a free American.
I grew up as an Army brat and then served 22 years in the Air Force, thus this day means much to me. My father was a Green Beret who spent the prime of his career during the Vietnam era. To this day, 27 years after he retired, he still lives and breathes what his service means to him. “My” war was the first Gulf War. I was at Incirlik Air Base, Turkey and although it was a very challenging time, I certainly was never engaged in anything remotely close to hand-to-hand jungle combat of the Vietnam era or the close up and personal urban warfare our troops see today. In every war though, the saying that “all give some and some give all” certainly applies. On Memorial Day, we pause to honor these heroes of our past, the sacrifices not only they made, but those of their loved ones as well, so they might know how very much we appreciate what they gave. Yes, it is not only about remembering, but also about truly appreciating their gift to us and asking ourselves what our responsibility is in maintaining that gift for those that follow us. At the very least, we have a responsibility to reflect on where we are today as both a nation and a people. Is our country the shining city on the hill that our predecessors fought to preserve? Are we a people that others look up to? I learned in my 22 years in the Air Force that the best way to lead is to set the right example. What kind of example are we setting to the world? Would our forefathers be proud?
The Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This is one of the drivers that led our predecessors to march into battle and give their lives. Yet, even today, 232 years later, we are deficient in living up to this ideal. Just as the Tuskegee Airmen flew valiantly in the Army Air Corp during WWII and afterwards still suffered segregation, and women were also allowed to serve in many critical positions (to include flying) but then were relegated back to their kitchens after the war, gay men and women today are told they are unequal, not due the same liberties, nor the same right to happiness. Instead, they are told that as long as they pretend to be someone else, they can serve. Never mind they are giving their lives for their country without the right to even name their partner to receive their Survivor Benefit, should they be called to die for their country.
I was recently reminded of how far behind the rest of the westernized world the United States is on this issue when a friend of mine travelled to the Netherlands to lay a wreath at the Dutch Homomonument. This monument was raised on September 5, 1987 in memory of lesbians and gay men who were harassed, imprisoned, or executed. Every May 4th, during the annual national memorial service, gays and lesbians, many in uniform, gather around this monument in the evening to remember all the victims of gay hate. The Netherlands is not alone in such acceptance of gays and lesbians. In fact, the United States is the last of 22 Allied countries with troops in Iraq and Afghanistan to allow gays to serve openly in their Armed Forces. Israel and South Africa also allow gays to serve openly and studies regarding the integration of gays in the militaries of Australia, Israel, Britain and Canada have shown the change to be a non-event.
When I contemplate the sacrifices our men and women in uniform have made, and continue to make, I think about selfless devotion to duty and courage. I also think about honesty and integrity as these are essential characteristics for those responsible for defending our country. That’s why, year after year, the military ranks at the top of careers most admired by the American people. Why then, when honor and integrity are such valued traits of our military men and women, are gays and lesbians forced to hide the truth about who they are…in direct conflict with those values?
There are at least 65,000 homosexuals in the military today and another one million gay and lesbian veterans around the country. These men and women are valued members of their squadrons, their battalions, their ships, and their communities. They serve honorably and in some cases, they die honorably, such as Major Alan Rogers who was killed in Iraq by an IED in January, 2008. According to his commander, he shielded two others from the blast who likely would have been killed were it not for Alan’s bravery. The enemy and the IED they deployed didn’t care that Alan was gay. Neither did Major Margaret Witt’s patients, (an Air Force flight nurse who was discharged after 18 years of decorated service), care that she was a lesbian, only that she could provide them the medical care they needed.
Our military has a history of leading change; of doing the right thing before the rest of the country follows suit. This was certainly the case with the integration of African Americans into the Army. Long before the Civil Rights Act of 1964, President Truman, in July of 1948, signed Executive Order 9981, calling on the armed forces to provide equal treatment and opportunity for black servicemen. This policy was the right thing to do, not only for equality, but also for national defense. Because of postwar racial quotas, black servicemen comprised a large portion of the force and therefore, had a direct impact on the nation's cold war defenses. Today, gay men and women also play a critical role in our nation’s defense. One case in point is that the military has discharged at least fifty-five Arabic and Farsi linguists under “Don’t Ask, Don’t Tell” in the last five years. Discharging these linguists hurts military readiness and ultimately costs the taxpayer much more when either the military is forced to find and train another recruit, or hires the discharged member as a contractor who gets paid much more for doing the same job as before (sometimes with the same unit). “Don’t Ask, Don’t Tell” has forced the Pentagon to discharge nearly 800 vital personnel critical for national security, including linguists and military intelligence analysts, according to a 2005 GAO report. Keep in mind that these men and women were not discharged for being homosexual, but for others finding out they were. Truth is, homosexuals serve every single day, in virtually every single way and assimilate just fine. They are doing the job as valued members of the team and to top it off, most of their co-workers, and sometimes even their bosses, know they are gay. So, you have to wonder, what is the problem?
Our national anthem, the Star Spangled Banner, ends with the words: “the land of the free and the home of the brave”. It is up to each and every one of us to ensure those words always describe our great nation. Apathy and complacency are not the answer, engagement and advocacy are. I am reminded of the powerful message sent by the lone man at Tiananmen Square in the standoff with the tank. That man displayed courage that most of us will never know. He must have been afraid, but he knew that his cause was worth any price, even his life. We have many such causes in America today and all of us must work together to make the right changes. We all should ask ourselves: “if not me, who” and “if not now, when."
This Memorial Day 2008 is especially poignant for me. As I retired from the Air Force last July, this is the first Memorial Day I can celebrate as my true self. Because of how profoundly that new found freedom has changed my life, the cause I’ve chosen to support is repeal of Don’t Ask, Don’t Tell. I believe civil liberties are a fundamental right of American citizens, and of those civil liberties, none can be more fundamental than the right to be yourself and to love whom you choose. In 1777, Edmund Burke, an Irish philosopher and statesman said, “the true danger is when liberty is nibbled away, for expedience, and by parts”. “Life, Liberty and the pursuit of Happiness” must apply to all Americans, not just some. I am proud of our country, I’m proud to be one of its citizens, I’m proud that citizenship affords me some of the rights few in the world share, and I’m proud to be working with SLDN to ensure EVERY American enjoys all the rights to which we are entitled.
-Linda Thomas SLDN Military Advisory Council Member

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05-24-08 Comment (1)

MEMORIAL DAY— Friends Remembered

There's a grief that can't be spoken.
There's a pain goes on and on.
Empty chairs at empty tables
Now my friends are dead and gone.
– Les Miserables
Floyd Gilbert was an Army Chaplain in the “First Tank” battalion in South Korea. Chuck Magnus was an Army aviator who flew helicopters in Vietnam. Bob Eastman was a naval officer who worked for many years as a legislative liaison with Congress. All three were my friends and mentors, and all three were gay. This Memorial Day, I want to pay a personal tribute to the memories of Floyd, Chuck, and Bob.
I grew up in rural Georgia, in a working class devoutly Southern Baptist family. I learned the value of hard work, and also of keeping any inkling of my gay sexual orientation deep under wraps. Like most gay youth of that era, I had no gay role models. I did what I thought I had to do to survive: I pretended to be straight and prayed that no one would ever think differently. As my life’s journey unfolded, I encountered those who helped me to understand and value who I am. Floyd, Chuck and Bob were three of those special people.
The first time I flew in an airplane, I had to jump out. It was the summer of 1982, and I was a 20 year old ROTC cadet attending the Army’s Paratrooper School at Fort Benning, Georgia. The first time I actually landed in an airplane was my 1984 arrival in South Korea for my first duty station as a newly commissioned second lieutenant. There I met Chaplain Floyd Gilbert. Floyd was a Captain for the “First Tank” Battalion in the Second Infantry Division. I, as a brand new junior officer with not the slightest clue as to what I was supposed to be doing, was assigned as the battalion’s intelligence officer, or “S-2.”
Newcomers’ orientation was held shortly after my arrival and Chaplain Gilbert made me, and all the other “newbies,” feel very much at home. We were thousands of miles from our families, serving on foreign soil, but “Chaplain Floyd,” as the troops liked to call him, calmed our anxieties and let us each know that he was our friend. Thereafter, whenever our unit went to the field for a training exercise, Chaplain Floyd was there by our sides, helping to keep our spirits high and making sure that we knew we were never alone. My tour of duty passed quickly in South Korea, and I was sent thereafter to other assignments in the United States and in Europe.
In 1991, the Army sent me to work at the Pentagon. By that point I had “come out of the closet” in all aspects except for my professional life. Upon arrival in Washington, D.C., I eagerly rented an apartment in Dupont Circle, and promised myself that I would no longer live in total fear of someone finding out I am gay. One of the first places I went was to a Dupont Circle gay bar known as J.R.’s. I remember nervously walking through the crowd, searching for a place at the bar where I could order a much needed drink. About half way through the crowd, I felt the firm grasp of a hand on my shoulder. When I turned about, I was looking into the smiling face of Chaplain Floyd. He was at that time working at Walter Reed Army hospital. Floyd and I became fast friends. By that time, he had lived in D.C. for a few years and knew the ins and outs. He maintained that same cheerful optimism I remembered from my time in South Korea those many years prior. He helped me to acclimate to my new life in D.C., and he was there when I needed him.
Sometime in 1993, at the invitation of J.B. Collier, a gay Navy veteran who I had befriended shortly after moving to D.C., I attended an SLDN fundraiser. It was there I met retired Army Lieutenant Colonel Chuck Magnus. Chuck, a Vietnam War combat veteran, lived in Northern Virginia with his life partner, and was very involved in the early effort to lift repeal “Don’t Ask, Don’t Tell.” Chuck was at that time about my father’s age, and he warmly reached out to me as and helped make me feel as though I had a place in the movement to lift the gay ban. Chuck was very involved in supporting President Clinton’s failed effort to end the military’s anti-gay policy. Chuck was a distinguished looking guy, with a head full of silver hair and exuding a confidence that came with the wisdom of his years. As an openly gay retired military officer, Chuck was a picture-perfect ambassador for the gays-in-the-military issue, and the news media loved him. With grace and dignity, he advocated on behalf of gay and lesbian troops by giving countless national and local media interviews, and passionately lobbying members of Congress.
Chuck introduced me to Bob Eastman. Bob was a retired Navy Commander. He had spent his final years on active duty working with the Navy’s Congressional liaison office. By the time I met Bob, he had already retired and was enjoying life to the fullest. Bob, I can say with great affection, was a piece of work. Whenever called upon to help the cause, Bob was always there – and Chuck called upon Bob often. Bob had a sunny, infectious disposition, and it can truly be said that he never met a stranger. I fondly remember spending many an evening at Bob’s condo, where he would cook and entertain his many friends. Everybody loved Bob, and I was proud to include myself as one of his friends. Bob loved the Navy, and he loved America. And, he loved being an openly gay retired Navy Commander in America.
By the time I decided to leave the Army in 1996 and enroll in law school, I had reached a point in my life where I no longer feared being gay. Instead, I embraced who I am and promised to never again live my life in fear. Following graduation from law school, I decided to join the SLDN staff as an attorney. During my four years at SLDN, I remember frequently thinking of those who had positively influenced my life. I came to appreciate how valuable an impact Floyd, Chuck and Bob had on me, and on my coming to terms with my sexuality.
I am now honored to serve on the SLDN Board of Directors, and on this Memorial Day I want to dedicate my continued service in the fight for the freedom to serve to the memory of Floyd, Chuck and Bob. But for their service and their efforts, and that of many others like them, the progress we have made these past 10-15 years would never have happened. These three men were patriots, who – each in their own different and special way – not only left their mark by what they accomplished while living, but continue to leave their mark through the memory of their inspiration and courage.
Here they talked of revolution.
Here it was they lit the flame.
Here they sang about `tomorrow'
And tomorrow never came…
That I live and you are gone.
There's a grief that can't be spoken.
There's a pain goes on and on... Empty chairs at empty tables, where my friends will sing no more.
– Les Miserables.
-Jeff Cleghorn
SLDN Board of Directors

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05-24-08 Comment (0)

MEMORIAL DAY—Remembering Alan Rogers

Memorial Day is a special time for Americans who have lost loved ones to the service of our country. The families and friends of the more than 4,000 American service members killed in Iraq since 2003 share a special bond rooted equally in grief and pride, emotions we will share as we mark Memorial Day once again this year.

This Memorial Day is particularly salient for me this year as I remember the life of my friend and colleague, Major Alan Rogers. As many people now know, Alan was killed in Iraq by an IED on January 27, 2008. According to his commander, he shielded two others from the blast, who likely would have been killed were it not for Alan’s bravery. Alan was laid to rest at Arlington National Cemetery on March 14th, 2008, in the presence of more than two hundred grieving but proud friends, fellow soldiers, and family members.

I knew Alan through my work here at Servicemembers Legal Defense Network and through our mutual activism in the DC Chapter of American Veterans for Equal Rights. He was a student at Georgetown University, pursuing a master’s degree through a prestigious Army fellowship program, when I first met him.

Because of my familiarity with the legal ins and outs of “Don’t Ask, Don’t Tell” and the Military Readiness Enhancement Act, a bill that would repeal that law, Alan interviewed me for his final paper for school. I used to chide him for being so “out” to so many people, and worried that some day the fact that he was gay would get back to the military and spell the end of his career. I worried that his choice of topic for his final paper might raise eyebrows, and cause him to be discovered. But he seemed fearless, confident that he’d make it through his career without his sexual orientation getting in the way. In the end, I guess he was right.

When I first learned of Alan’s death through an email I received at work from a mutual friend, I was stunned. I walked dazed into the office of a good friend and colleague and cried bitterly. I cried because none of us would ever see Alan’s beautiful smile again, except in photographs and in our minds’ eyes. I cried because it was unbearable to think of this beautiful and gentle person being ripped apart by an IED in a foreign land. I cried because Alan was so good. He was one of the kindest, most generous, thoughtful, genuinely good people I have ever known. And he was gone, and nothing would ever change that.

In addition to this grief, which I am sure is typical of that felt by everyone who loses a friend or loved one to war, my grief was compounded by the knowledge that Alan would not live to see the day when the Army he loved so dearly would accept him for who he was.

Alan was so many things to so many people – he was a friend and mentor, an exemplary commander, a co-worker, a student – many of us didn’t even know until after his passing that he was an ordained minister. And all of these parts of Alan’s life were shared and celebrated by those who knew him and grieved his loss, and those who reported on his death in the papers. But the fact that he was gay was taboo.

I don’t think that people are defined primarily by the sexual orientation, but I think it’s a part of any person’s life. If I died tomorrow, my obituary would include mention of my loving husband and my kids – it’s a part of my life, just as much as anything else. But because Alan was gay, this part of his life would have been buried with him if it weren’t for the efforts of friends who insisted on telling Alan’s story – including the fact that he was gay.

Why does it matter? Why should anyone need to know that Alan Rogers, an American patriot who died doing what he loved most – serving our country – also happened to be gay?

It matters because in our country the law says that gay people who want to serve in our nation’s Armed Forces have to conceal their identity for the privilege of doing so. And as a result, thousands of very good, fair, and decent straight service members have no idea how many of the phenomenal people they work with every day also happen to be gay. This invisibility creates an environment of complacency about “Don’t Ask, Don’t Tell” and what it requires of gay Americans in uniform. And change does not happen in an environment of complacency.

This part of Alan’s story is important because Alan can put a face on gay service members in his death, even if he couldn’t during his life. Alan was by every metric an utterly superb Army officer. He gave his life for our country, and saved two other lives in the course of sacrificing his own. He also happened to be gay. So why do we have a law in this country that makes Alan’s life less worthy than any other? Why should Alan have had to sacrifice the freedom to live honestly among his military peers, to date and maybe even find someone special enough to spend his life with? Why did he have to give so much more as a privilege of serving our country? These are the questions Alan’s life and death pose for all of us.

Alan’s funeral at Arlington was beautiful. The solemn procession of people that followed the caisson bearing Alan’s casket came from all walks of life. Alan touched so many lives so profoundly, that people came from literally all over the world to pay their final respects to him. And there, at that funeral, the many worlds in which Alan lived came together at last. Active duty friends and former colleagues in dress uniform stood beside a large cadre of gay veteran friends of Alan’s. The sea of faces contained members of every race, young and old. A few brave gay active duty service members even came to pay their respects, nervously doing their best to keep their distance from the gay veterans they knew there, and trying instead to blend in with the other uniforms in the crowd. Sometimes I noticed people eying each other uneasily, as if they were wondering about each other’s connections to Alan.

After the funeral, I saw an officer with whom I served as a young lieutenant many years ago. I walked across the lawn and called his name, and within seconds we were reminiscing about our younger years serving together overseas. He asked me what I was doing now, and I told him I’m working to repeal the ban on gays in the military. He was supportive. “We need all the good people we can get,” he said.

I asked him how he knew Alan, and he said they were classmates together at Georgetown. He asked me how I knew Alan, and I hesitated for a moment. Finally, I looked my old colleague in the eye, and I said very cautiously, “I knew him through my work."

A brief pause followed. “Wow,” my old colleague responded. “There was so much about Alan I never knew."

There was so much about Alan that people never knew. I’m still grieving his loss, as I know so many others are as well. And I’m intensely proud to have called him my friend.

-Sharon Alexander

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05-23-08 Comment (1)

Civil Rights—Then and Now

The California Supreme Court ruled last week that same-sex couples have the same fundamental right to marry as heterosexual couples under the California State Constitution. The decision was based in part on the 1948 decision in Perez v. Sharp which ended the state's ban on interracial marriage.
In his latest Huffington Post blog Aubrey Sarvis talks about the history and evolution of our country's understanding of equality and how President Truman's integration of the armed forces in 1948 may yet affect the future of lesbian, gay and bisexual troops.
Click here to read more and comment on the need for basic civil rights for all.
-Victor Maldonado

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05-22-08 Comment (0)

Thoughts and Prayers

Staff and supporters of SLDN would like to send our best wishes to Massachusetts Senator Edward Kennedy and his family, following news yesterday that he has been diagnosed with cancer. A powerful advocate for civil rights and issues important to millions of military families, Kennedy has fought for a government that grants everyone equal access to the American dream regardless of their race, gender, religion, nationality or sexual orientation. Kennedy has been a public supporter of SLDN and our work to repeal “Don’t Ask, Don’t Tell,” and now it is our turn to stand by him. Everyone here at SLDN has been moved by his spirit and his strength. He has consistently fought for the underdog, and fought hard. He has lived through a lot. He'll get through this, too. Our thoughts and prayers are with him.
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05-21-08 Comment (0)

Witt v. U.S. Air Force

Earlier this week, the 9th Circuit Court of Appeals reinstated the case of Major Margaret Witt, a U.S. Air Force flight nurse who was discharged after 18 years of decorated service when her command learned that she is a lesbian. This decision marks the first time a U.S. Court of Appeals has specifically stated that the military must meet a heightened standard when infringing on a gay service member’s right to privacy. So what does this mean, exactly, for the future of “Don’t Ask, Don’t Tell (DADT)?” To be honest, we aren’t really sure. I can tell you that all of the lawyers at SLDN were dancing in the hallways when we read the opinion issued by the court. (Okay, maybe it was just me dancing in the halls but we were all pretty excited!). In the short term, the 9th Circuit ruling means that Major Witt will get her day in court. She’ll have the opportunity to tell her story and show that her constitutional rights were violated by the Air Force when she was discharged under DADT. And, because of this heightened standard that the court is now requiring, in order to pass constitutional muster, the government must present evidence showing that Major Witt’s continued service in the Air Force is such a disruption to unit cohesion, good order and discipline that her discharge was justified under DADT and that DADT itself is one of the least intrusive means of addressing Major Witt’s disruption to unit cohesion. But because the 9th Circuit decision was specific to Major Witt, and was narrowly written to apply to her case only, what this means for the future of “Don’t Ask, Don’t Tell” litigation is unclear. What is inspiring about the court’s opinion is that the 9th Circuit justices not only ruled in favor of Major Witt, but they also took the opportunity to give a clear analysis of why Lawrence v. Texas requires a heightened standard of review, even in a military setting. In 2004, SLDN, along with co-counsel WilmerHale, filed Cook v. Gates, a constitutional challenge of “Don’t Ask, Don’t Tell” on behalf of 12 service members discharged under the law. Just like Major Witt’s case, Cook was dismissed at the trial court level without a chance to develop any facts. In March of 2007, the Cook plaintiffs made very similar arguments to the 1st Circuit Court as did Witt did to the 9th. With the issuance of the Witt decision, SLDN has great hope that the 1st Circuit will, at the very least, reach the same conclusions as the 9th Circuit and will allow our plaintiffs to have their day in court.
-Emily Hecht

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05-21-08 Comment (0)

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