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BREAKING: DOJ to appeal Witt reinstatement order in DADT case

DADT trial

by Andy Kelley
New Media Organizer, Courage Campaign

In breaking news, the Department of Justice has filed an appeal to the trial judges order in Witt v. Department of Air Force that Witt be reinstated into the service.

As Chris Geidner at Metro Weekly reports:

On Sept. 24, U.S. District Court Ronald Leighton ruled that the Air Force’s discharge of Witt under DADT violated her constitutional rights. He wrote:

[T]he Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest … it cannot be necessary to further that interest …. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

In October, the Department of Justice opposed Witt’s request for costs, in part, because “Defendants’ time for noticing an appeal of the Court’s September 24, 2010 decision does not expire until November 23, 2010, and, accordingly, this matter has not been finally resolved in plaintiff’s favor.”

This is truly a step in the wrong direction by the Obama Administration, especially in light of the President’s public statements last week renewing his commitment to ending the ban.

The DOJ motion can be viewed in its entirety here:

[scribd id=43809545 key=key-14hyir5p3zocb3v2gxf1 mode=list]


  • 1. Ann S.  |  November 23, 2010 at 9:39 am

    Wrong. So wrong.

  • 2. Lesbians Love Boies  |  November 23, 2010 at 9:56 am

    What court now gets this case?

  • 3. bJason  |  November 23, 2010 at 10:01 am

    The 9th Circuit.

    This is appealing the lower court's ruling (that was sent back FROM the 9th circuit for clarification) on Witt's OWN case regarding the new WITT standard which they (the 9th circuit) established – – – – FROM THIS CASE!!!!

    I am SSOOO tired of this BS. (Sorry LLB, I know you can't swear 🙂 ).

    So tired.

    What the Eff is O doing????? I can't even pretend to comprehend anymore.

  • 4. Lesbians Love Boies  |  November 23, 2010 at 10:07 am

    It's okay about the swearing…I can read them, just not physically say or type.

    The DOJ did such a poor job on the trial level (I think it was on purpose)…is there really any way the Ninth would change the outcome?

  • 5. Steve  |  November 23, 2010 at 12:11 pm

    The standard that the DoJ did NOT appeal. They decided to not appeal the one ruling in this whole thing that has an effect on DADT at large.

    This is an as-applied challenge that has nothing to do with the whole DADT repeal process. There is absolutely no reason to fight this.

  • 6. elliom  |  November 23, 2010 at 11:20 pm

    I have an idea of what MIGHT be going on with all the appeals. (IANAL, just trying to think logically)

    It MIGHT be that DOJ, and thus the Obama Admin., is trying to push the issue with Congress. Something along the lines of "put up or shut up." 'Cause, basically, this will be settled either by Congress or the Courts. By pushing these appeals, DOJ is effectively telling Congress to get off their collective @$$es, and act. Otherwise, they'll have little or no control over how things are resolved. And the gov't does tend to prefer legislative over adjuticative solutiions.

  • 7. Kathleen  |  November 23, 2010 at 9:41 am

    This is just so, so, wrong!

  • 8. Sagesse  |  November 23, 2010 at 4:59 pm

    Wrong, but not unexpected.

  • 9. Alan E.  |  November 23, 2010 at 10:11 am

    Very true. One can only hope that Obama is secretly trying to help out the DADT cause if the congressional repeal falls through.

  • 10. JonT  |  November 23, 2010 at 10:30 am

    Agreed. Totally expected.

  • 11. Ronnie  |  November 23, 2010 at 9:42 am

    Two middle fingers up, DOJ…two middle fingers up…guess where you can shove them?……<3…Ronnie

  • 12. Gregory in Salt Lake  |  November 23, 2010 at 9:59 am


  • 13. B&E  |  November 23, 2010 at 9:53 am

    I guess our tax dollars are paying for this appeal. I say foul! No taxation without equal representation. I really feel down trodden. My knuckle dragging dead beat dad just told me he could never accept my homosexuality. I've been out for over 20 years. Now this! Our government is so out of touch with reality. Here comes the theocracy.

  • 14. Judy  |  November 23, 2010 at 11:03 am

    Sorry about your dad.

    Theocracy is scary as hell. No, wait, there is no hell. Theocracy is scary as right-wing extremists. Of any religion.

  • 15. Rhie  |  November 25, 2010 at 6:44 pm

    I am so sorry about you Dad. It sucks when family acts horribly no matter how long or how expected.

  • 16. Straight Ally #3008  |  November 23, 2010 at 10:04 am

    With advocates like these….

  • 17. Straight Ally #3008  |  November 23, 2010 at 10:07 am

    From Robert Gibbs:

    This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy.

    The thing is, this assumes that Congress will act rationally.

  • 18. Lesbians Love Boies  |  November 23, 2010 at 10:08 am

    Not just congress…but now the newly 'red' congress.

  • 19. Carol  |  November 23, 2010 at 10:26 am

    In other words, a legislative repeal or no repeal?

  • 20. bJason  |  November 23, 2010 at 10:38 am

    EFF Gibbs!

    EFF our f**ked advocate!

    I am really pissed off.

  • 21. bJason  |  November 23, 2010 at 10:24 am

    It gets better??

    EFFING when?

  • 22. Bill  |  November 23, 2010 at 10:39 am

    Stay classy, United States of America.

  • 23. aaron in san fran  |  November 24, 2010 at 2:05 am

    … and san diego

  • 24. bJason  |  November 23, 2010 at 10:42 am

    So, I'm going to try to encapsulate this trial for those not in the know. Someone correct me where I am wrong>>>


    1. Margaret Witt went to a lower court – "I want to stay in the armed services".

    2. Lower court dismissed

    3. Witt appealed to the 9th circuit. They said "yeah, you should be in the armed services" and, in so doing, created the "Witt Standard" (google it – I won't take the time to explain).

    4. The government DID NOT APPEAL this ruling creating the "Witt Standard".

    5. The 9th circuit sent the original case back to the lower court to be decided (with respect to Margaret Witt) against the new… wait for it… WITT STANDARD they just created.

    6. The lower court (applying the, you guessed it, WITT STANDARD) said that Margaret Witt (where have I heard that name before??) should be reinstated in the armed services.

    7. 11/23/10 – the government, that DIDN'T appeal the Witt Standard, appeals the original case (as applied to… umm… MARGARET WITT).

    ?? *(@&^@(*&^@(*^@#*&^#@(Q ??

    I am so very tired of it all!!!!!!!!

  • 25. Alan E.  |  November 23, 2010 at 10:48 am

    bJason, there was nothing to appeal with the Witt standard decision. The same case was sent back to the district court to use the newly designed standard. This is not unprecedented in the courts, but I don't have time to research it right now.

  • 26. Carol  |  November 24, 2010 at 9:15 am

    I believe the present appeal will ask the 9th Circuit to decide if Judge Leighton properly applied the Witt Standard. I assume the court will decide he did.

    I don't understand why the DOJ is doing this, because I don't see how the appeal can move DADT toward the professed goal of legislative repeal, nor how not appealing could have interfered.

  • 27. bJason  |  November 23, 2010 at 10:47 am

    We mean nothing to them. It is past time for us to swallow that bitter pill.

  • 28. Lesbians Love Boies  |  November 23, 2010 at 10:51 am

    Ronnie needs to come in here and post a positive song. I still hold hope for the US to finally see me as a regular person and not some deviant pervert.

    You are a beautiful person Jason…never forget it. You are kind, loving and full of wonder. Don't be alarmed by one setback…remember two steps forward…one step back. We are making headway.

    Gosh, I wish I had those words of wisdom…to make you feel better. A writer or philosopher I am not!

  • 29. Lesbians Love Boies  |  November 23, 2010 at 10:53 am

    At least I know you are TeeHeeing me about using the word 'Gosh!'

  • 30. bJason  |  November 23, 2010 at 10:58 am

    Jason <3 LLB!!!


  • 31. bJason  |  November 23, 2010 at 11:08 am

    This is the only song that I am feeling right now.

  • 32. Lesbians Love Boies  |  November 23, 2010 at 11:14 am

    Here is one to remember…

  • 33. Ronnie  |  November 23, 2010 at 11:10 am

    Here you go….From Ryan James Yezak & the guys who brought you California Gays & Peacock (videos to Katy Perry songs)…a brand new music video for Kesha's "We R Who We R"


  • 34. Lesbians Love Boies  |  November 23, 2010 at 11:17 am

    Love it Ronnie!

  • 35. Freddy  |  November 23, 2010 at 11:35 am

    LLB, I actually came up to your neck of the woods today, its been 2 or 3 months since I have been up that way, kinda strange seeing a city for a change, good thing is I will be back on Tuesday. Hope you are well.

  • 36. Lesbians Love Boies  |  November 23, 2010 at 11:37 am

    Hey Freddy, cool. It's a bit warmer up here than down in SV. I am on Facebook (not sure if you and I are friends on there yet or not.)

  • 37. bJason  |  November 23, 2010 at 11:27 am

    Pretty boys dancing mostly naked around to a club beat – nice to look at. good for???

    Sorry, I'm ready for us to take to the streets.

    No offense to anyone intended.

    People vent on the ones whom they love.

  • 38. Lesbians Love Boies  |  November 23, 2010 at 11:35 am

    It's okay…we still have ?? rounds left in this fight and we have whooped on them this round and won!

  • 39. Straight Ally #3008  |  November 23, 2010 at 11:38 am

    On the subject of two steps forward, one step back…this video from EqualityMaine describes the slow march toward equality in the Pine Tree State. They're in the middle of another setback, with the passage of Question 1 and the disastrous gubernatorial race, but the will persevere, as we all must.

  • 40. Lesbians Love Boies  |  November 23, 2010 at 11:58 am

    Wow, what a wonderful history lesson. All of those people were ahead of their times…and I am so incredibly impressed by them all.

  • 41. Lesbians Love Boies  |  November 23, 2010 at 12:03 pm

    Something to take your mind off of human suffering…vulture suffering…

    Gay Community Protests After Zoo Separates Same-Sex Vulture Couple

    Members of Germany’s gay community were outraged Tuesday after a pair of homosexual vultures were forcibly parted and made to mate with females.

    The pair, Guido and Detlef, have become the poster boys for protests against intolerance, even though they are both predatory males.

    In a world of cholera outbreaks, terrorism threats, imploding banks and decreasing fortunes and species, certain German gay rights campaigners have found the time to express solidarity and sympathy for the birds’ plight.

    The drama began in March when Guido and Detlef set up home together at the Allwetterzoo, in the British Army garrison town of Munster, northwest Germany.

    The griffon vultures, Gyps fulvus, showed no interest in female company. They were happy in their own world, grooming one another with tender sweeps of their savage beaks between rearranging the sticks that made up their nest, although the other vultures kept stealing materials as if to spite their arrangement.

    Dirk Wewers, the zoo’s curator, said: “They always sat so closely together. They defended their nest from the other vultures. A suitable female was missing and in such a case vultures look for companionship from the next best thing, even if it is a male. Detlef looked for a bird of the opposite sex but settled with Guido.”


  • 42. elliom  |  November 23, 2010 at 11:24 pm

    Because homosexuality is "unnatural." That it, in fact, DOES occur in nature is irrelevant. It's not "natural," and therefore must be stopped.

    Guess these vultures are going to hell like the penguins.

  • 43. Lesbians Love Boies  |  November 23, 2010 at 12:14 pm

    Amazing that there are still incredibly disillusioned people out there that they don't even know we are already amongst them…LGBT are already serving our country…nothing will change there!

    GAFFNEY: Introducing 'forced intimacy'
    Americans reject sexual bureaucracy in armed forces and airports

    President Obama is hoping to capitalize on our ignorance of these folks and the reality of their lives in uniform – notably, the phenomenon known as "forced intimacy" that is inherent in communal bunk rooms, showers, latrines, shipboard sleeping compartments and foxholes. He is insisting that the U.S. Senate accede during the post-Thanksgiving lame-duck session to his demand for the repeal of a 1993 law prohibiting homosexuals from serving in the armed forces.

    In 2010 civilian America, the idea of self-identified lesbian, gay, bisexual and transgender (LGBT) persons being entitled to equal job opportunities and social treatment has become widely accepted. Polls are cited endlessly that suggest most civilians are sympathetic when LGBT activists demand that the military must conform to this practice.

    Suddenly, just as the Obama-led campaign to foist the radical homosexual agenda on the U.S. armed forces is reaching its denouement, the American people are getting a taste of forced intimacy – and they don't like it. In airports around the country, they are being subjected to intrusions on their personal space by people and machines of the Transportation Security Administration (TSA).

    Being forced to submit to a privacy-rending body scan or pat-down – unpleasant as it may be – is not likely to compare to the trauma that can flow from being forced to submit to showering or sharing a bunkroom with someone who finds you sexually attractive. Still, as the traveling public is beginning to understand, "virtual strip-searches" and officially sanctioned groping are offensive. So is the TSA response that those who don't want to "submit" to them can always elect not to fly.


  • 44. elliom  |  November 23, 2010 at 11:34 pm

    This dude must be smokin' the crack again, 'cause these ideas make absolutely no sense.

    Being groped and denuded by a gov't ag'cy (TSA) is in no way similiar to sharing quarters. Nearly all military showers are private (most non-private showers are in combat zones, and who's thinking of sex while bombs are dropping?), and sharing a ROOM is not the same as sharing a BED. Most college dorm residents have less privacy than military personnel, yet there's been no outcry from them about "forced intimicy" from them. You'd think, if it was that big of an issue, college students all over the world would be screaming in outrage.

  • 45. elliom  |  November 23, 2010 at 11:34 pm

    Need edit button.

  • 46. Richard A. Jernigan  |  November 23, 2010 at 1:28 pm

    There are some who are saying that POTUS is pushing for the appeals of the DADT & DOMA decisions to help bring those cases all the way up the judicial chain. Some say it is because he knows DADT and DOMA will fall when it gets to SCOTUS.

  • 47. Ann S.  |  November 23, 2010 at 1:31 pm

    That may be the hope, but no one can "know" this, not even the POTUS.

  • 48. Sagesse  |  November 23, 2010 at 2:08 pm

    I tend to agree. A district court decision needs to be validated at least at the Circuit court level before it can be used as leverage in Congress. Even if all these decisions broadly agree, they need the credibility of an appellate court win.

    Every time the subject comes up, there is uncertainty as to what SCOTUS would rule. Discriminatory laws are not unconstitutional until SCOTUS says so, and not one is betting which way the Roberts court will jump.

  • 49. Bob  |  November 23, 2010 at 2:30 pm

    POTUS SCOTUS screw them all, it's time for a revolution, enough of being kidked around from one to the other looking for validation , from outside ourselves……. waiting and watching for the court or congress to accept us as humans. while they themselves function with bribes, votes bought with money, wars fought with human rights infractions, we are asking for validation from a place that at present has no value… us. we have to vaule ourselves…….. and make them see it.

    social justice NOW civil rights NOW they can change the rules and the game later, when they catch up with the rest of the free world and start to play fair…..

    the insanity of asking for justice from an unjust government

  • 50. Lesbians Love Boies  |  November 23, 2010 at 2:44 pm

    Anonygrl needs to come in here…she can write a rhyme for your POTUS SCOTUS. A lymerick we can use throughout time.

  • 51. elliom  |  November 23, 2010 at 11:40 pm

    I'm not a eloquent as anonygrl, but here's something that can be used throughout time. And always good for a reread.

    Or, as read by the NPR staff:

  • 52. Sagesse  |  November 23, 2010 at 10:59 pm

    Pentagon: No gays were discharged in past month

  • 53. Bob  |  November 24, 2010 at 3:34 am

    Positive news in the pentagon article,,,, but I question their definition of openly gay service members, cause it sounds like those are not people who chose personaly to be open in this environment and test the waters, but rather they are referring to members presently under investigation, which has forced them to be open,,,,, it's good that there is a halt on actions in these cases..

    except, could someone get to the service member in this situation who is under suicide watch, cause he's got a story that needs to be told, the pressure in the situaiion must be unbearable……

    the powers that be, are aware enough to witness the harm they inflict and at least in this stiuation seem to be trying to prevent it………

  • 54. Sagesse  |  November 23, 2010 at 11:01 pm

    Navy Chief Praises Don’t Ask, Don’t Tell Report: ‘I Think The Work That Has Been Done Is Extraordinary’

  • 55. Bob  |  November 24, 2010 at 3:39 am

    Excellent, the Chief says the report will be issued on Nov 30th as opposed to Dec 1st, to improve it's workablity during lame duck, that's encouraging, also saying it would work better if done through congress, allowing timetables for implementaiton, rather than court order which would overturn it instantly.

    I don't think they need time but I can see where he's coming from in terms of having the pentagon on board, and not being force to take orders from the court…..good news me thinks.

  • 56. fern  |  November 24, 2010 at 7:29 am

    Hope and blahblah by Oblablah, and his team "promises promises" at least with an extreme right dictatorship you know where you stand. Another first from the Democrats going down the drain with a first term.
    Sad very sad.

  • 57. MJFargo  |  November 26, 2010 at 2:00 am

    Yes, and these are the times that try their souls. We have to keep all of this alive before the courts. It's our only resort. The Executive and Legislative branchs aren't going to hand it to us. Obama was never a "ringer" on this issue, and whether his intentions are good or bad, there's just too much lobbying around him to allow him to do the right thing. It would take a person of courage and sacrifice to do what needs to happen. We've not had that in the White House for a long, long time.

    But the courts, for the most part, are free of the influencesof prejudice, and that's where we need tokeep focusing. (God bless the folks who have taken these cases before the courts, and those who have argued for us…and bless those in the future as well.)

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