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US military officer sues to prevent discharge under 'Don't Ask Don't Tell'

By Dwyer Arce

[JURIST] A US military officer on Wednesday filed a lawsuit [complaint, PDF] seeking to enjoin the military from discharging him under "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive]. The lawsuit, filed in the US District Court for the District of Idaho [official website], seeks a temporary restraining order preventing the discharge of Lt.-Colonel Victor Fehrenbach, arguing that allowing the military to discharge him would violate his constitutional rights and cause irreparable harm. The complaint argues that under the US Supreme Court case of Lawrence v. Texas [text] and Witt v. Department of the Air Force [JURIST report] from the US Court of Appeals for the Ninth Circuit, a discharge under DADT is constitutional only if it survives a heightened scrutiny analysis as applied specifically to the particular service member. Under this precedent, the complaint argues, the discharge must promote "morale, good order and discipline, and unit cohesion." Citing Fehrenbach's service record, the lawsuit explained:

DADT is unconstitutional as applied to Lt. Col. Fehrenbach because the government did not offer any evidence ... establishing that discharging Lt. Col. Fehrenbach for engaging in consensual sexual relations with a civilian of the same sex in the privacy of his offbase home significantly furthers the goal of maintaining discipline, good order, morale and unit cohesion. ... The Air Force's evidence was insufficient to meet its heavy burden[.] ... [It] failed to present any evidence ... to support its claim that Lt. Col. Fehrenbach's continued service on active duty would hinder those goals. On the contrary, the evidence establishes that discharging Lt. Col. Fehrenbach would, in fact, be detrimental to morale, good order and discipline, and unit cohesion.

The suit went on to quote statements made by Chairman of the Joint Chiefs of Staff Adm. Mike Mullen and Defense Secretary Robert Gates [official profiles] in which they argued that the DADT policy itself does not promote these interest. It also argued that even if the policy were constitutional as applied to Fehrenbach, the military did not follow the necessary legal procedures during the investigation and discharge proceedings.

Last month, the US District Court for the Central District of California began the trial in a case challenging [JURIST report] the constitutionality of DADT. Plaintiffs in the case argued that the military policy violates the First Amendment [Cornell LII backgrounder]. Plaintiffs argued that under Lawrence and later precedent, the government must show that an interference with the private life of homosexuals is "necessary to further [important government interests]." In May, the House of Representatives and the Senate Armed Services Committee voted to repeal the policy after a compromise was reached [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects it would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.

Full post as published by JURIST - The Paper Chase on August 13, 2010 (boomark / email).