In San Francisco on Monday, Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP filed a complaint against the U.S. government for the reinstatement of three servicemembers discharged under "Don't Ask, Don't Tell."
The law was challenged in district court on behalf of former Air Force Staff Sgt. Anthony Loverde, Air Force Maj. Michael Almy, and former Navy Petty Officer Second Class Jason Knight.
The lawsuit makes similar constitutional claims to the ones in Judge Virginia Phillips’ September case in which she ruled for an end to the law. Her decision noted that private, consensual activity between members of the same sex cannot be outlawed under the First and Fifth Amendments. The lawsuit is also based on the argument that service members cannot be discharged without demonstrating that their removal is necessary for unit cohesion and readiness, which was established in a 2008 case. Furthermore, “lawyers for the three plaintiffs in the latest suit plan to contend that allowing gay service members to serve openly actually strengthens the armed forces by not requiring them to keep their sexual orientations a secret,” reports the Associated Press.
The lawsuit also seeks to have "Don't Ask, Don't Tell" declared unconstitutional, so that it will be repealed before a new Congress is sworn in next month. Aubrey Sarvis, executive director of SLDN, echoed Defense Secretary Robert Gates’ sentiment on Friday morning that failure by the Senate to repeal the law would cause change through an immediate overturn by the courts. “We prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law,” he said in a statement.
The Washington Blade describes Almy as an Air Force communications officer discharged in 2006, Loverde as an Air Force technician discharged in 2008, and Knight as a Navy translator, discharged in 2007. CNN also gives detailed descriptions of the men’s careers, stating that they served for 13, 7, and 5 years, respectively. “I greatly love and miss the military and just can’t wait to go back in as an officer and a leader,” Almy told the Blade in an interview. Almy’s family has a history of serving in the military.
The U.S. Justice Department has 60 days to respond to the complaint. M. Andrew Woodmansee, a partner at Morrison & Foerster, told the Blade that he expects a “ruling by summary judgment” by next summer, rather than a trial. He believes the case has a good chance of winning due to the strong military records of its plaintiffs.
The lawsuit comes just days after the Senate blocked debate on the National Defense Authorization Act—which contains language repealing “Don’t Ask, Don’t Tell”—for the second time this year. Since then, Senators Joe Lieberman and Susan Collins have introduced a stand-alone bill in a last attempt to repeal the law, but it is unclear whether it will come to a vote before Senate adjournment for the holidays. SLDN plans to introduce additional lawsuits next year if "Don't Ask, Don't Tell" is not repealed during this Senate session.
GLAAD will continue to monitor media coverage and provide updates of ongoing conversations about “Don’t Ask, Don’t Tell.”