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social sciences

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Don't Ask, Don't Tell  
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In contrast, lawyers for the Justice Department could only reiterate the tired talking points of 1993 when the act was adopted by Congress.

On September 24, Judge Leighton ruled in favor of Major Witt and ordered her reinstated in the Air Force as soon as practicable. He found that her discharge under DADT violated her due process rights under the Fifth Amendment to the Constitution.

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He wrote, "The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important governmental interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. . . . Her loss within the squadron resulted in a diminution of the unit's ability to carry out its mission."

Major Witt thus became the first servicemember discharged under DADT to be ordered reinstated. On November 21, the Department of Justice announced that it would appeal the ruling, though later they reversed themselves and Major Witt reached a settlement with the Air Force that allowed her to retire with full benefits.

Just before the Witt case was retried, on September 9, 2010, District Judge Virginia Phillips of Riverside, California released her opinion in another case in which she had applied the Witt test. Using that standard in Log Cabin Republicans v. U.S.A, Judge Phillips ruled forcefully that the Don't Ask, Don't Tell Act is unconstitutional.

Referring frequently to the Ninth Circuit's 2008 ruling in the Witt case and to Lawrence v. Texas, she declared that Don't Ask, Don't Tell violated the due process clause of the Fifth Amendment and the guarantees of freedom of speech and petition of the First Amendment to the Constitution of the United States. She issued an injunction barring enforcement of the policy anywhere in the world.

Judge Phillips' strongly reasoned dissection of the policy brilliantly detailed its deleterious effect on the lives of individuals and on the military itself.

In her ruling, she rehearsed the testimony of military experts, such as Dr. Lawrence Korb, Professor Aaron Belkin, and Professor Robert MacCoun, who explained how the policy is harmful to the military, and of servicemembers--including such outstanding soldiers as Michael Almy, Joseph Rocha, Jenny Kopfstein, John Nicholson, Anthony Loverde, and Steven Vossier--whose privacy was violated and whose expression was unconstitutionally inhibited by the policy.

In many ways, the 85-page decision is a crushing analysis of all that was wrong with the enforcement of the policy. Judge Phillips pointed out, for example, that the military often suspended investigations of troops accused of homosexuality if they were to be deployed abroad, waiting to discharge them only when (or if) they returned. This practice, she observed, is utterly inconsistent with the military's contention that gay and lesbian servicemembers undermine unit cohesion. If they really did that, then the military would surely not want troops accused of homosexuality to serve in battle.

Quite apart from the harrowing accounts of injustice suffered by those who were directly affected by the Don't Ask, Don't Tell policy, perhaps the most damning revelation of the trial was the disconnection between the ostensible aims of the legislation and its effects. As Justice Phillips wrote, "Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been not to advance the Government's interests of military readiness and unit cohesion . . . but to harm that interest."

On October 12, 2010 Judge Phillips issued her final judgment and a worldwide injunction against enforcement of the DADT Act. She ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.

Dan Woods, the attorney who represented the Log Cabin Republicans in the landmark suit, released a statement on October 12 declaring Don't Ask, Don't Tell dead: "This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can."

However, the declaration of victory was premature. The Obama administration moved quickly to resurrect the policy. On October 14, the Department of Justice indicated that it would appeal the decision and asked Judge Phillips to issue a stay of her injunction against enforcement of the Don't Ask, Don't Tell Act. They indicated that if a stay of the injunction were not granted by October 18, they would seek an emergency stay from the Court of Appeals, alleging that the the military would be thrown into chaos if they could not enforce DADT.

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