for the week ending September 25, 2010
(As broadcast on "This Way Out" program #1,174, distributed 9-27-10)
[Written by Greg Gordon, with thanks to Lucia Chappelle and
Rex Wockner with Bill Kelley]
Reported this week by Tanya Kane-Parry and Pam Marshall
Another U.S. district judge has found “Don’t Ask Don’t
Tell” unconstitutional. It was the second such decision by
a federal court in less than a month. The 17-year-old U.S.
military policy forces gay and lesbian service members to
stay in the closet.
Thousands who never “told” have also been discharged after
being “outed” by a third party. They include a highly
decorated Air Force nurse, Major Margaret Witt.
Tacoma, Washington-based U.S. District Court Judge Ronald
Leighton – appointed in 2002 by George W. Bush – ruled this
week that Witt’s discharge did not “further the government’s
interest in promoting military readiness, unit morale and
cohesion.” Those concerns were used to justify “Don’t Ask
Don’t Tell” when it was enacted in 1993. Leighton had
originally rejected Major Witt’s lawsuit seeking
reinstatement in 2006. But an appeals court subsequently
sent the case back to him with instructions defining what
has become known as the “Witt Standard”: the military had to
prove that the service member’s presence negatively impacted
her or his unit.
On the contrary, Leighton wrote this week, evidence
presented by Witt’s American Civil Liberties Union lawyers –
including testimony by several of her squadron members –
clearly showed that it was Witt’s discharge that negatively
impacted her unit’s readiness, morale and cohesion.
Air Force lawyers argued that the military was in the best
position to evaluate and enforce “Don’t Ask Don’t Tell”.
Judge Leighton disagreed, and determined that the policy
violates both due process and free speech provisions of the
The judge lauded Major Witt’s 20 years of dedicated service
in the Air Force Reserve as a flight nurse, who led the
emergency evacuation and medical treatment of wounded
soldiers. He said in his decision that those being saved
didn’t worry about the sexual orientation of their rescuers.
Major Witt was booted just prior to being eligible for
retirement and full military benefits. Leighton ordered her
reinstatement “as soon as is practical.”
Witt celebrated the ruling on MSNBC’s September 24th “Rachel
MADDOW: “What have you been doing since you were discharged
under the “don‘t ask, don‘t tell” policy? What have you been
doing in civilian life?”
WITT: “I‘m a pediatric physical therapist and I‘m also the
rehab coordinator for the veterans‘ hospital.”
MADDOW: “And if this goes through - if what the judge says
has to happen ends up happening, if the Air Force does take
you back, you are—you‘re eager to get back to—back into the
WITT: “Oh, absolutely. I can‘t get—you know, I can‘t wait to
get back to my unit and be with my incredible unit members.
They‘re a wonderful group.”
Legal analysts called the establishment of the “Witt
Standard” a significant advance in efforts to overturn
“Don’t Ask Don’t Tell”. The appeals court order under which
Judge Leighton reversed himself now seems to require federal
courts to consider the specific circumstances of each
service member challenging a discharge under the policy.
Another federal court judge this month ruled that “Don’t
Ask Don’t Tell” is unconstitutional in a challenge to the
policy filed by the predominantly gay Log Cabin Republicans.
In deciding that “Don’t Ask Don’t Tell” violates the first
and fifth amendments to the U.S. Constitution, Riverside,
California-based U.S. District Judge Virginia Phillips said
she’d consider a request by Log Cabin attorneys to issue a
worldwide injunction against enforcement of the policy. She
asked the plaintiffs and the government to submit arguments
for and against it.
The U.S. Justice Department submitted its response on
September 23rd, the filing deadline. It asked Judge
Phillips not to issue the injunction, offering a host of
arguments against the idea. Among them, "The United States
is not a typical defendant, and a court must exercise
caution before entering an order that would limit the
ability of the government to enforce a law duly enacted by
Congress." The Justice Department also claimed that, at
most, the ruling and prospective injunction should only
apply to Log Cabin Republican members, and should not apply
to parties not directly involved in the lawsuit.
The Log Cabin Republicans denounced the filing. "We are
not surprised... but we are extremely disappointed with the
Obama administration," the group said in a statement. "Many
times on the campaign trail, President Obama said he would
support the repeal of ‘Don't Ask, Don't Tell’. Now that
it's time to step up to the plate, he isn't even in the
Jonathan Turley is a noted Constitutional law professor. He
contrasted the Justice Department’s action on the September
24th “Rachel Maddow Show” with those of California officials
in the Proposition 8 federal court case:
TURLEY: “What they‘re not doing is what Governor
Schwarzenegger did, what Attorney General Brown did, which
is to say, look, we had a duty to defend a statute, but
we‘re not going to appeal it because we happen to agree with
how the court came out. The Obama administration appears not
to be doing that.”
Turley also discussed parallels with the civil rights
movement of the 1950s and 60s, noting that it was the
courts, not the legislative or executive branches, which led
the way to major rights reforms for African-Americans during
That may also be true for sexual minorities in the early
21st century. Republicans in the U.S. Senate – with the
complicity of both Arkansas Democrats – blocked a vote on
the repeal of Don’t Ask Don’t Tell” this week. It was part
of the National Defense Authorization Act, the usually
routinely approved annual U.S. military funding bill.
We’ll have more on this latest U.S. LGBT-related political
setback later in the program.
As we reported last week, Moscow Pride leader Nikolai
Alekseyev was abducted by unidentified government agents at
the city’s Domodedovo Airport on September 15th and held for
more than two days.
Alekseyev is now safely back in Moscow. He says he was
seized after passing through passport control and taken to a
room by security officials and an airline worker. His
luggage, documents and computer were examined for more than
Alekseyev then was turned over to what he called "hulking
men in civilian clothes, with faces not disfigured by
intellect," who removed him from the airport via nonpublic
passageways. They drove him to a police facility two hours
away, where he was searched again. He says he used his iPad
to discover where he was, which told him he was in the city
of Kashira, about 500 kilometers, or 300 miles, from Moscow.
They eventually seized his iPad but couldn’t get into it
because it was password-protected.
Alekseyev said he was repeatedly called "faggot" and
"pederast," and was probably drugged via a glass of water.
He said he was pressured but refused to sign a paper saying
he was dropping his multiple lawsuits at the European Court
of Human Rights over Moscow Mayor Yuri Luzhkov's repeated
bans of LGBT Pride events.
The second night, Alekseyev says, he was moved to another
police facility in the city of Tula, farther south of
Moscow. It was around that time that someone used
Alekseyev’s cell phone to text false messages to the media
saying that he was in the Belarusian capital of Minsk; that
he was seeking political asylum there; and that he was
dropping his European Court cases.
Alekseyev said he was released on the outskirts of Tula
early in the morning of September 18th. He made his way to
the city center, and took a bus to Moscow.
Alekseyev, who’s also a lawyer, has filed a series of
lawsuits against Moscow Mayor Luzhkov’s multi-year Pride
bans at the European Court of Human Rights. The Court has
merged the cases and is expected to deal with them this
Alekseyev was among at least a dozen people arrested on
September 21st – Luzhkov’s birthday – at a demonstration
outside Moscow City Hall to protest the mayor’s recalcitrant
homophobia. They displayed a look-alike paper-maché dummy
and unfurled posters to mock Luzhkov, who’s repeatedly
called LGBT Pride events “satanic”.
The activists were arrested after handcuffing themselves to
a metal fence next to the building, but were released a
short time later. The experienced Alekseyev told the “U.K.
Gay News” that the police processed the detainees much more
efficiently than he’d experienced in the past to “get rid of
us as soon as possible... We have been charged for taking
part in an unsanctioned event only, and not for disobeying
police orders... As a result,” he said, “the maximum
sentence is a fine.” Alekseyev’s case is scheduled for
And finally, back in the U.S., a Florida appeals court
this week unanimously struck down the state’s 33-year-old
law banning adoption by lesbians and gay men. A three-judge
panel of the Third District Court of Appeal in Miami ruled
the ban unconstitutional. They wrote that no other group,
not even convicted criminals, is singled out and banned in
state adoptions law.
Florida was the last U.S. state with such a ban, a relic of
Anita Bryant’s 1977 “Save Our Children” campaign. Lesbians
and gay men were allowed to be foster parents, but the law
prohibited them from eventually adopting those children.
The ruling will allow plaintiff Frank Martin Gill to keep
the two sons he adopted with his partner in 2009 after
fostering the boys for several years.
Florida Governor Charlie Crist, who’s running for the U.S.
Senate as an independent after losing to “Tea Party”
candidate Marco Rubio in the Republican primary, said the
state would not appeal the ruling. Florida’s Department of
Children & Families immediately ordered that the sexual
orientation of prospective adopters not be discussed or
considered during their evaluation process.
Proud papa Gill told the “Associated Press” that “I’m
actually going to get their birth certificates with me
listed as their father... I think [they’re] going to have a
prominent place in our house,” he added. “That will be the
written proof of all of this struggle.”