DADT repeal dominates fall LGBT agenda in Congress and courts

by on September 13, 2010  •  In Congress, Military

Building on last week's federal court decision that Don't Ask Don't Tell is unconstitutional, the focus on military policy this week will remain intense.

In Tacoma, WA, trial begins this morning in Witt v. Air Force, another constitutional challenge and the one that set the new standard for DADT cases that Judge Phillips applied in the Log Cabin case.

In DC, the Senate returns today from its summer recess for a four-week session, a period that could be do or die for enacting the 2011 National Defense Authorization Act, which contains the provision to repeal “don’t ask, don’t tell.” And the situation seems to be getting worse. According to Kerry Eleveld at the Advocate, Dems who see little to be accomplished are starting to press for a shorter session and adjournment before Oct. 8.  Truncating the session would essentially mean no action on the NDAA, and only a long shot chance of repealing DADT in a post-election lame duck session.

Majority Leader Reid has repeatedly promised that the bill will come up for its crucial vote during September, but concern that he would not stick to that schedule built last week from press reports like this one on a blog oriented to the defense industry: 

The chances that the Senate will take up the National Defense Authorization Act before the next recess are declining by the minute; “contingency planning” is now the operative phrase..

The pressure is two-fold: Democrats want to spend the time trying to enact tax breaks for small businesses, to help them in their campaigns; and some Dems, perhaps including Reid, are in freak-out mode over tackling DADT with polls showing so many incumbents at risk. Eleveld calls the problem "some combination of timing, strategy and sheer lack of guts."

The best hope is that momentum from the Log Cabin Republicans decision will flip the dynamics in DC.  Politico's politicos, however, think a vote before the election is "unlikely."

Meanwhile, trial is beginning in the challenge to DADT in the Witt case and is expected to last into next week. Judging from the pre-trial briefs filed by the ACLU, who represents the plaintiff, and the Justice Department, the government's last-ditch strategy may be launch a smear attack on Margaret Witt.

The main difference between Witt and the Log Cabin case is that the ACLU's strategy in Witt was to win the principle that the government had to prove in each individual case that retaining the gay service member would threaten unit cohesion. They achieved this when the case was before the Ninth Circuit on an earlier appeal. [527 F.3d 806] Now the case is back before the trial judge, for the government to try to meet that standard. Needless to say, if this rule stands, discharges would ground to a halt, since the government could never meet that standard in the great majority of them, and the resource burden of trying to do so would be absurd.

Major Witt served for 19 years as a flight nurse, receiving  several medals (including one personally from President Bush) and being chosen as an emblem of the nursing corps for an Air Force recruiting program. The Justice Department's brief indicates that they will attack her personal life, introducing evidence that she had relationships with a married woman (whose husband complained to the Air Force) and with two other Air Force officers, and that she acknowledged her lesbianism to other women in her unit.

It's an insidious and disgusting tactic, not necessary for the Justice Department to use, and one that it should be ashamed of. The idea is that Witt is not entitled to relief because she "told," which the Department tries to turn into a kind of presumption of harm. But its implicit logic dregs up a stereotype of irresponsible sexuality associated with being gay.

The government's brief does not allude to any evidence that Witt's presence disrupted the business of her unit, or even bothered anyone (except perhaps the unlucky husband). The ACLU has multiple witnesses to testify that there was no disruption. The fact that any of this would be aired in open court — without a foundation established that her private activities actually had an impact on her workplace — is itself testament to what an odious policy remains in place.


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