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Discharged Gay Vets Sue For Reinstatement

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By Tanya Roth, Esq. on December 15, 2010 5:54 AM

Yet another suit challenging the constitutionality of don't ask don't tell has been brought before a court. Three decorated, discharged gay veterans filed suit in federal court in San Francisco seeking reinstatement because the law that was used to dismiss them from the military is unconstitutional.

This case is meant as "a shot across the bow" to Congress to compel them make the decision on don't ask before the courts do, reports The Los Angeles Times. The Obama Administration has repeatedly said it wants the law's repeal to come from the legislative branch of government, not from the judicial.

The plaintiffs in the suit, Air Force veterans Michael D. Almy and Anthony J. Loverde, and former Navy Petty Officer Jason D. Knight, were all decorated service members before being discharged under don't ask don't tell. The suit asks the servicemen be reinstated under the precedent set in the Witt case. In that 2008 decision, the 9th Circuit Court of Appeals said the civil rights of flight nurse Margaret Witt were violated when she was fired under "don't ask, don't tell" without proving she needed to be removed to protect her unit's cohesion or readiness, according to a report by the Associated Press.

Although the remedy sought is different and some of the arguments are based in different law, the main issue of this new case is the same as that filed by the Log Cabin Republicans where Judge Virginia Phillips ruled don't ask don't tell unconstitutional. Since that case is now on appeal, it is likely the San Francisco court will grant a stay in this new case until the first case has been decided by the 9th Circuit.

What all are really hoping for is not the long, drawn out solution offered by the court system, but a decisive vote in Congress. A recent vote failed, but a stand-alone bill to repeal don't ask has been introduced by Sen. Susan Collins (R-Maine) and Sen. Joe Lieberman (I-Conn.). It is unclear, writes The Times whether the bill will reach a vote before the end of the lame-duck session of Congress near the end of December.

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