Senator Majority Reid announced that the Senate might again attempt to repeal DADT during the lame-duck session following the November 2010 elections, but Senator McCain said that he would again filibuster any such attempt.

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Court Rulings

Although some individuals had successfully sued to block discharges under the military's anti-gay policies, most notably Sergeant Leonard Matlovich in the 1970s, Sergeant Perry Watkins and Sergeant Miriam Ben-Shalom in the 1980s, and Colonel Margarethe Cammermeyer in the 1990s, courts had been unwilling to declare the Don't Ask, Don't Tell Act unconstitutional. This is partly because of the deference that courts have traditionally paid to military policy and partly because, until recently, courts had not recognized a constitutional right to homosexual sexual expression.

This latter condition changed with the 2003 United States Supreme Court decision in Lawrence v. Texas, the decision that reversed Bowers v. Hardwick and invalidated laws. In that decision, Justice Kennedy wrote for the court's majority that "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." The Court also found that due process rights are far reaching, encompassing the "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Lawrence v. Texas proved crucial to two recent decisions that led to the declaration of Don't Ask, Don't Tell as unconstitutional by a federal District Court.

In a 2008 case, Witt v. Department of the Air Force, the United States Court of Appeal for the Ninth Circuit determined that the precedents upholding Don't Ask, Don't Tell needed to be reconsidered in light of Lawrence v. Texas.

The case involved Major Margaret Witt, a highly-decorated Air Force flight nurse, who was discharged under Don't Ask, Don't Tell. She alleged that the policy violated the due process clause of the Fifth Amendment to the Constitution.

Although Witt's case initially failed at the District Court level, on appeal, the Ninth Circuit, while not ruling on the merits of Major Witt's claims, sent the case back to the District Court, declaring that Don't Ask, Don't Tell must be reconsidered, using a heightened level of scrutiny.

The effect of this ruling was to force the military to justify its allegations that the presence of an openly gay servicemember negatively affects unit cohesion and that the Don't Ask, Don't Tell policy was necessary for purposes of military readiness. It thereby established a test by which the policy's constitutionality could be measured.

While the ruling did not declare the Don't Ask, Don't Tell Act unconstitutional, it made discharging soldiers under the policy potentially much more difficult. The military could not rely upon mere assertions of hypothetical risk, but had to demonstrate the dangers posed by openly gay servicemembers.

The Witt case was retried at the District Court level in Tacoma, Washington in September 2010 by Judge Robert B. Leighton, the very judge who in 2006 had found that Major Witt's constitutional rights had not been violated by her discharge from the Air Force.

During the retrial, Major Witt's former colleagues testified as to her exceptional skills and as to the fact that knowledge of her sexual orientation had no effect on unit cohesion and morale. Indeed, they testified that her firing adversely affected morale and cohesion.