SLDN and legal partners file lawsuit against “Don’t Ask, Don’t Tell”

December 13, 2010 at 11:33 am 50 comments

By Adam Bink

As reported Ed in the previous thread, word just came in that Servicemembers Legal Defense Network and their allied legal counsel have filed a lawsuit against “Don’t Ask, Don’t Tell”, calling the policy unconstitutional and asking for the reinstatement of three veterans discharged under the policy. The lawsuit was filed in the US District Court for the Northern District of California. SLDN head Aubrey Sarvis:

“This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law.  This dispute can be resolved by Congress or by the courts.  With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country.  The plaintiffs are three service members who want to serve their country again.  They represent some of our best and brightest who were fired because of who they are, despite their decorated records.  More than 14,000 have already lost their jobs and the investigations and discharges still continue.  We are also preparing litigation on behalf of young people who would enter the armed forces to serve our country but for this terrible law.  Another suit we’re working on involves clients discharged under ‘Don’t Ask’ who want to enter the reserves or a guard unit, and we plan to file such cases early next year if Congress fails to act.  Clearly there is an urgent need for the Senate to act on legislation this week.”

On the legal side of things, more from SLDN:

The legal team will ask the Court to apply the so-called Witt standard and order that the plaintiffs be reinstated.  In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit – which governs the Northern District of California – held that discharging a service member violates the Constitution unless: (1) the government advances “an important governmental interest;” (2) the government shows the intrusion “upon the personal and private life” of a service member “significantly furthers that interest;” and (3) the government shows the intrusion is “necessary to further that interest.”

Aside from this being another another effort to win an end to this law, it’s particularly useful at the moment, buttressing one of the principal and most persuasive arguments made by Secretary Gates and Admiral Mullen. That argument is that if Congress does not end this law, the courts will almost certainly do so, which upsets that military’s careful timetable and game plan for repeal. Which will hurt the military.

During my liveblogging of the recent Senate Armed Services Committee hearings, I wrote that Secretary Gates and co. were boxing McCain into the bizarro-world position of hurting the military with his steadfast opposition to doing this the way it should be done- via Congressional action. Their testimony and responses to McCain wisely set up the frame that if you want to help the military, you’ll vote to do this the way the military wants it done.

This lawsuit and its coverage helps reinforce that argument, and you can see that intent in the last lines of Sarvis’ statement.

The filing can be found here. We’re pulling out all the stops, and the battle is further joined. Let’s make sure to do our part by continuing to generate calls and pressure on key swing Senators. The ask is to support the Lieberman/Collins stand-alone bill. A target list can be found here. Again, there are 60 Senators who have stated they oppose this policy and will vote to repeal it. We need only to make sure they’re “aye” votes on this bill.

More information about the plaintiffs, courtesy of SLDN, can be found in the extended entry.

Plaintiff Michael D. Almy served for thirteen years in the United States Air Force, including four deployments to the Middle East.  He is a highly trained communications officer.  During his thirteen-year Air Force career, former Major Almy received numerous military awards and decorations.  In 2006, he was discharged from the Air Force under DADT.

Plaintiff Anthony J. Loverde served for seven years in the Air Force.  He is a trained C-130 Loadmaster and Precision Measurement Equipment Laboratory Technician.  During his seven-year Air Force career, former Staff Sergeant Loverde received numerous military awards and decorations.  In 2008, he was discharged from the Air Force under DADT.  He is currently a contractor serving in Iraq, doing effectively the same job with many of his old coworkers, as an openly gay man.

Plaintiff Jason D. Knight served for a total of five years in the United States Navy.  He is a trained Cryptological Technician Interpretive, Linguist.  During his five-year Navy career, former Petty Officer Second Class Knight received numerous military awards and decorations.  Mr. Knight has the unique distinction of being discharged twice under DADT.  In 2005, he was discharged from the Navy under DADT.  Mr. Knight was recalled to active duty in 2006 but was discharged again in 2007 under DADT.


–Distinguished graduate,  Air Force ROTC  – 1992

–Officer of the Year for the entire group – 1999

–Air Force Achievement Medal – April 1999

–Air Force Commendation Medal – 1998

–Air Force Commendation Medal – February 2000

–Air Force Commendation Medal – October 2001

–Joint Service Commendation Medal – July 2003

–2004 Lt. Gen. Leo Marquez Communications-Electronics Award, Field Grade Manager Category


–Air Medal with 1 oak leaf cluster

–Air Force Commendation Medal

–Air Force Outstanding Unit Award with 3 oak leaf clusters

–Air Force Good Conduct Medal

–National Defense Service Medal

–Global War on Terrorism Service Medal

–Air Force Overseas Ribbon: Long

–Air Force Expeditionary Service Ribbon with Gold Border

–Air Force Longevity Service

–Air Force NCO PME Graduate Ribbon

–Small Arms Expert Marksmanship Ribbon with 1 service star

–Air Force Training Ribbon

–Distinguished Graduate, Basic Loadmaster Course

–Distinguished Graduate, Airman Leadership School

–Airman Below-the-Zone promotion *Early promotion


–Navy and Marine Corps Achievement Medal

–First Good Conduct Medal for Period Ending April 3, 2004

–National Defense Service Medal

–Global War on Terrorism Service Medal

–Navy Pistol Markmanship Medal

–Armed Forces Reserve Medal 2/”M” Devise

–Navy Good Conduct Medal

–Navy Rifle Sharpshooter Ribbon

–Sea Service Deployment Ribbon

–Navy and Marine Corps Overseas Service Ribbon

–Global War on Terrorism Expeditionary Medal

–Member served in Imminent Danger Pay Area from September 11, 2006-April 18, 2007

–Mobilized in Support of Operation Enduring Freedom

Entry filed under: Don't Ask Don't Tell.

#SenateFail and one way the Senate can avoid it Sen. Manchin’s hearing aid

50 Comments Add your own

  • 1. Kathleen  |  December 13, 2010 at 11:34 am

    • 2. Ann S.  |  December 13, 2010 at 11:41 am


      • 3. StraightForEquality  |  December 13, 2010 at 12:51 pm

        • 4. Lesbians Love Boies  |  December 13, 2010 at 12:58 pm



          • 5. JonT  |  December 13, 2010 at 5:08 pm

            = ☮

  • 6. Sagesse  |  December 13, 2010 at 12:13 pm


    As I said in the previous thread… strategic move.

  • 7. Ed  |  December 13, 2010 at 12:18 pm

    As people used to say…..I guess I made some ink LOL. Adam, thanks for the mention, but it was unnecessary, I am just trying to do my part (as we all are) of keeping up with all the breaking news. Although, when i read that, i ran to tell my partner all about it, in a giddy schoolboy fashion, and he laughed and called me a dork :)

    • 8. Ann S.  |  December 13, 2010 at 12:32 pm

      Go, Ed!

    • 9. anonygrl  |  December 13, 2010 at 12:50 pm

      I love the dork image of running like a giddy schoolboy… but I know exactly what you mean. The couple of front page pieces I wrote that were published here made ME all goofy and giddy too.

      I think it is because I so respect both the Courage Campaign and all the P8TT posters, that is an honor when something I say seems worthy of recognition by them. Along the same vein, I love it when someone responds to one of my random comments in a thread with something inciteful that makes me think, or smile, or burst into tears… and that is so often the case here. That, I would say, is why I have become a regular.

      What I mean is… I love you all. :)

  • 10. Ronnie  |  December 13, 2010 at 12:30 pm


  • 11. Richard A. Jernigan  |  December 13, 2010 at 12:49 pm

    YES!!!! SLDN, you guys and gals ROCK!!!!! We know we cannot rely on the people we have elected, who are supposed to remember that WE are THEIR bosses, not the other way around. This means that we have to take it to the courts, and we have to take it to the streets!!!!!!!!!!

  • 12. Lesbians Love Boies  |  December 13, 2010 at 1:01 pm

    I agree with almost everything…I have reservations about this comment:

    That argument is that if Congress does not end this law, the courts will almost certainly do so, which upsets that military’s careful timetable and game plan for repeal. Which will hurt the military.

    I think that if this were ended via the courts and tomorrow was the absolute end of DADT, the military would fair just fine.

    • 13. anonygrl  |  December 13, 2010 at 1:16 pm

      To be fair, there are issues of benefits that would need to be worked out, and I think THAT may be more about what the military is concerned about… having time to create and implement a benefits policy. Yes, they could stop throwing people out immediately, but there are related issues that they would like the time to coordinate before people start suing over them.

      Specifically, and this is what makes it kind of ironic, the issue of same sex couples who cannot marry in their home states, but would do if they could, and how that impacts base housing, seems to be a concern. Other benefits as well, that same sex couples are not eligible for because they CANNOT marry become issues, and there needs to be policy set in place for all of that.

      That being said, the military should have been exploring all of this for the past 10 months in preparation for their survey report coming back exactly as it did, but what are the chances that they actually have done so?

      • 14. Steve  |  December 13, 2010 at 1:28 pm

        You haven’t read the report, have you? The benefits issue is addressed at some length in the Pentagon study (as well the implementation guidelines, which contain case exmaples). They know what to do. Or rather what they want to do.

        Yes, DOMA is the biggest obstacle and they don’t want to open base housing to unmarried couples – gay or straight. Interestingly, the solution for gay couples would be to have children. Children count as dependents are eligible for housing.

        Anyways, they already thought about this stuff. They just need to rewrite their regulations and instruct people of the changes.

        • 15. anonygrl  |  December 13, 2010 at 1:45 pm

          I read some of it… haven’t had time to digest the whole thing yet. I knew the report was addressing the questions, I didn’t realize they had worked out all the answers yet.

        • 16. fiona64  |  December 13, 2010 at 3:57 pm

          Steve wrote: Interestingly, the solution for gay couples would be to have children. Children count as dependents are eligible for housing.

          Yes, that’s true. However, it presumes that a given gay couple wants children … which is a big responsibility to take on just for the sake of military housing.


      • 17. anonygrl  |  December 13, 2010 at 1:29 pm

        All that being said, I am not sure why the military doesn’t just suspend the part of the policy that says “and discharge them if they do tell” immediately. That they COULD do with no harm, no foul, until they worked out the rest of it, and NO ONE would say “YOU HAVE TO DISCHARGE THESE GAY SOLDIERS!!! DO IT NOW!!! IT’S THE LAW!!!”, I would think.

        • 18. Kathleen  |  December 13, 2010 at 1:40 pm

          McCain might.

          • 19. Lesbians Love Boies  |  December 13, 2010 at 1:48 pm

            I think McCain is just ‘hurt’ by not winning the election – he wants the exact opposite of anything Obama sides with. It’s McCain’s way or no way.

          • 20. Richard A. Jernigan  |  December 13, 2010 at 1:52 pm

            McLame would only be doing that because he is jealous that people in loving relationships might be getting more than he is. Or that we might be enjoying it more because we are honest with ourselves about who we are and who we love. Of course, I don’t think McLame knows how to love anyone else, because it is so obvious from his actions that he doesn’t even love himself. And you have to love yourself before you can love anyone else.

          • 21. Sagesse  |  December 13, 2010 at 2:59 pm


            I believe that McCain is majorly ticked that the Republicans didn’t take the Senate. If they had, he would be chairman of the Armed Services Committee, which is how he wanted to end his career.

          • 22. Richard A. Jernigan  |  December 13, 2010 at 3:12 pm

            @ Sagesse: McLame should have thought of that before he sold his unit out to the Viet Cong!

      • 23. Lesbians Love Boies  |  December 13, 2010 at 1:44 pm

        I agree that repeal is be the best outcome, but if it did just end today via the courts the military would not be ‘hurt.’ It’s primarily the word hurt that bothers me.

        • 24. anonygrl  |  December 13, 2010 at 1:46 pm

          Yes. Inconvenienced, perhaps, but not hurt. You are correct there.

        • 25. Sagesse  |  December 13, 2010 at 2:56 pm

          Now that they’ve done their study, I think the Pentagon has everything they need to end DADT in an orderly way, no matter who makes them do it. And Gates and Mullen know it. If Gates wants to use the alleged disruption and harm to spur legislative repeal, however, I don’t really mind.

  • 26. Ronnie  |  December 13, 2010 at 1:05 pm

    As reported on towelroad “Photographer documents human face of ‘DADT’.”:

    great photos & info about soldiers who have been discharged under DADT or came out after service to our country…..The photographer is Jo Ann Santangelo….<3…Ronnie

    • 27. Ronnie  |  December 13, 2010 at 1:12 pm

      One of the plaintiffs in this new case being brought up by SLDN, Navy Petty Officer Jason D. Knight, is number 3 in the photo set…..<3…Ronnie

      • 28. Gregory in Salt Lake City  |  December 13, 2010 at 4:13 pm

        WOW– such POWERFUL essay….just of few of the the 1000s discharged….just a few of the MILLIONS LGBTIQQ persons discriminated against for the crime of “being themselves” This insanity has got to STOP!

    • 29. Lesbians Love Boies  |  December 13, 2010 at 1:15 pm

      What a wonderful – yet sad – slideshow. Thanks for sharing Ronnie.

      • 30. Ronnie  |  December 13, 2010 at 2:03 pm

        you’re welcome….<3…Ronnie

  • 31. Ed  |  December 13, 2010 at 3:07 pm

    Posted December 13, 2010 at 7:06 pm | Permalink
    Your comment is awaiting moderation.

    (since this post will be deleted, I have a question). What does equality mean?

    I just posted that to NOM

  • 32. Rhie  |  December 13, 2010 at 3:52 pm


  • 33. DaveP  |  December 13, 2010 at 5:08 pm

    Off topic, but I’m posting this now in case I don’t get a chance to post on Tuesday (tomorrow):

    Bon Voyage, Felyx!! Our thoughts are with the both of you and we wish both you and Kevyn all the best.

    Write when you can!

    Dave P.

    • 34. Richard A. Jernigan  |  December 13, 2010 at 5:53 pm

      I found out earlier from Papa Foma that Felyx left at 10AM EST today, and is currently over the Atlantic. He should arrive at his destination around 3AM EST tomorrow. We have also sent our thoughts, prayers, and wishes for safety to them via Papa Foma. And of course, we all want to hear about how the trip and the stay with Kevyn goes, so Felyx, to echo Dave P., please write and let us know how you two are doing.

  • 35. Sagesse  |  December 13, 2010 at 5:42 pm

    David Petraeus Aide Marvin Hill Says No Room For Anti-Gay Troops If DADT Repealed

    • 36. Freddy/Lar  |  December 14, 2010 at 8:01 am

      This article, while getting Command Sergeant Major Marvin Hill’s point across, does a disservice to CSM Hill, CSM Hill is actually the Senior Enlisted Adviser to GEN Petraeus. An Aide or Aide-de-Camp for a four star general would be a commissioned officer around the rank of Colonel or Lieutenant Colonel and a few other lower ranking officers, this group of officers is responsible arranging the calendar, scheduling appts. and other errands that the General need taken care of. In some circles, the Aide is referred to as “The Dog Robber” as they are expected to rob the family dog to get what the General needs.
      On the other hand, CSM Hill is responsible for letting the General know how the troops feel on different issues and making sure the force is getting what they need to stay operational. CSM Hill will have his own staff but not what one would call an aide, to take care of his day to day tasks and maintaining his office. Generally speaking, a CSM will “rate” at the same level as the officer that they work for, in other words, all the CSM’s in Afghanistan answer to CSM Hill but also give him the input and concerns from their subordinates.
      This article makes CSM Hill sound like he carries around GEN Petraeus’s briefcase and is a low level staffer to someone that does not know the rank structure. FYI, my partner worked under CSM Hill and would be visited regularly to escape from the hoopla and drink coffee when they rotated thru Kosovo.

  • 37. Lynne @ No Junk. Just Jesus.  |  December 13, 2010 at 7:33 pm

    The fact that it’s still a tolerable idea that troops who will not work next to Gays should be allowed their say — when troops who will not work next to Blacks or Asians or Jews would be told to suck it up and get over it — is truly insulting. If it takes the courts to end this nonsense, then so be it. We certainly can’t count on even our “fierce advocates” to do anything but shoot us in the back.

    • 38. Richard A. Jernigan  |  December 13, 2010 at 7:37 pm

      Actually, Lynne, they aren’t even shooting us in the back. They are stabbing us in the back and the knife they are using is made of ice. That way, the only evidence left is the gaping, bleeding wound.

  • 39. grod  |  December 13, 2010 at 8:03 pm

    New DADT prescription still end in discharge:
    What was inferred from this article and headlines is Aide Hills’ world in two dimensional, cope/unable; gay/antigay; un-repealed/ repealed; stay/leave. In his world, change is imposed from without. It is not shaped by the interactions of people. Has he forgotten that the ‘gays’ and ‘anti-gays’ as depicted as stereotypes, are currently working and living side by side.
    “Its best you leave”! Isn’t this prescription of a post repeal world, the same as in the un repealed world: discharge. The other day I was on conference focused on retention of employees – a company’s most valuable assets. I did not see Aide Hill there. Perhaps, he was being interviewed for this article.
    Senators, standing on either side of the issue can take form this message a affirmation of their belief. Where the plan for awareness/sensitivity training is, targeted phase in?
    Yet the survey distinguished those who, at the time of the survey, knew ‘gays’ from those who did not. Those who did not or were uncertain, anticipated difficulties based on stereotypes. Those who did, reported ‘no’ such difficulty. Indeed, in the face of knowing someone, many who had anticipated a difficulty, report ‘no’ such actual difficulty. Aide Hill might also consider reading the survey.
    While this finding is analogous to the voters of California and Maine, in my view the message of this article will be understood by those who are comfortable with the status quo.

  • 40. Anonygrl  |  December 13, 2010 at 10:17 pm

    OK… good news to share…

    • 41. Richard A. Jernigan  |  December 13, 2010 at 11:20 pm

      Actually, Anonygrl, this is GREAT news! Her father was the first Latino on the bench, and now she is the first Latina in an openly same-gender committed spousal relationship! This is the kind of thing we need–for people to see that we are no different than anyone else, and that the Rainbow Tribe is just as diverse as the straight crowd. Thanks for this notice!

      • 42. Gregory in Salt Lake City  |  December 14, 2010 at 6:01 am

        what a lovely story to wake up to :) WOOT!

      • 43. anonygrl  |  December 14, 2010 at 6:45 am

        “Openly same-gender committed spousal relationship”

        You know, it is going to be GREAT the day that we can simply say “she is married.”

        And even better (although I don’t think I’ll live to see it) when we can say that and no one will ASSUME that she is married to a man, or CARE one way or the other about it.

        • 44. Gregory in Salt Lake City  |  December 14, 2010 at 7:03 am

          DITTO!!! ((HUGS))

          • 45. Gregory in Salt Lake City  |  December 14, 2010 at 7:23 am

            One thing I loved about the story is it yet again illustrates the drive, passion, creativity and determination of many LGBT persons…..

            “Coffman described Marquez’s ascent to the bench as a ‘meteoric rise’ but said although lawyers who stood close to Marquez “felt the breeze in their hair,” they were not jealous of her success because she worked hard for it.”

            slightly off-topic, lately I’ve been enjoying various episodes of RuPaul’s drag race on the internet…I’m mesmerized by the nerve, creativity, larger-than-life drag queen personalities. The world is a much more beautiful place as we all come out of our closets and celebrate our many diversities.

          • 46. Ronnie  |  December 14, 2010 at 10:44 am

            LOVE RDR!!!!….Season 3 premiers in January….can’t wait….<3…Ronnie

          • 47. Gregory in Salt Lake City  |  December 14, 2010 at 11:32 am

            Fun! Can’t wait! btw, at Gay pride SLC this year we had JuJu Bee and Morgan perform, help, be in the parade..they were awesome on all levels!

        • 48. Rhie  |  December 16, 2010 at 5:11 pm


    • 49. Ann S.  |  December 14, 2010 at 10:08 am

      Great news, thanks for sharing!

  • 50. Sen. Manchin’s hearing aid « Prop 8 Trial Tracker  |  December 14, 2010 at 7:53 am

    […] Gates’ reasoning that the military should be doing this on its own timetable (which, as I wrote yesterday, is a justification for Congress moving on this rather than allowing the courts to do so). Here are […]


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