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Trial in DADT challenge to begin Tuesday | Hunter of Justice

Trial in DADT challenge to begin Tuesday

by on July 9, 2010  •  In Constitutional law, Military

Chris Johnson of the Washington Blade reports that trial will begin next week in Log Cabin Republicans v. United States, a challenge to the constitutionality of the DADT policy. Judge Virginia Phillips of the Central District of California will hear the case, which will feature the first application of the standard set by the Ninth Circuit in Witt v. Air Force. Under the Witt standard, the government will have the burden to prove that each plaintiff's discharge is necessary to achieve an important governmental interest. (The Witt case itself is scheduled for trial in September in federal court in Washington state.)

On Tuesday, the U.S. District Court in the Central District of California will begin to hear testimony in what’s expected to be a two-week long trial in the case of Log Cabin v. United States. …The case is reaching its trial at the same time legislation is advancing through Congress that could put an end to “Don’t Ask, Don’t Tell.”

[Judge] Phillips agreed last week to hold the trial. The lawsuit is proceeding despite multiple requests to stay the case from the Obama administration, which is defending “Don’t Ask, Don’t Tell” in court.

Representing Log Cabin during the trial is Dan Woods, an attorney for White & Case LLP. …“It is evident from the evidence we’re going to put on that it is applied selectively, it is applied more in times of peace than in times of war,” Woods said. “It is quite clearly the case that most other countries with militaries comparable to ours allow homosexuals to serve and have no problems with lifting bans on homosexuals serving.”

Woods said seven expert witnesses at the trial will offer different perspectives on the harm that “Don’t Ask, Don’t Tell” has caused. Among those who are set to testify are Aaron Belkin, director of the Palm Center, a think-tank on gays in the military, and Nathaniel Frank, a former senior fellow at the Palm Center who’s now the senior strategist at the LGBT Movement Advancement Project. Both declined to comment for this article.

Woods also said five service members discharged under “Don’t Ask, Don’t Tell” will offer testimony during the trial. “The thrust of their testimony is not that they individually were unfairly discharged, but that their discharges had nothing to do with their performance or nothing to do with the so-called purposes of ‘Don’t Ask, Don’t Tell,’” he said….

Assistant U.S. Attorney Paul Freeborne will represent the Obama administration in court. Woods said he was told the administration won’t present any witnesses during the trial or any evidence other than the congressional testimony leading to the enactment of “Don’t Ask, Don’t Tell” in 1993.

A spokesperson from the Justice Department deferred to the administration’s earlier filings in the case in response to a Blade inquiry about how the administration will defend “Don’t Ask, Don’t Tell” in court….

Woods said the application of [the Witt] precedent will “have a major impact” on the case because the government would have to show it’s advancing an important interest with “Don’t Ask, Don’t Tell.” Additionally, he said the administration would have to prove the intrusion of “Don’t Ask, Don’t Tell” on LGBT people furthers that interest and is necessary for that interest.

“I don’t think the government can prove that and I think we can show that the government cannot meet that standard by the evidence we intend to put on,” he said….

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