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Witt DADT

Witt DADT

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Published by Ari Ezra Waldman

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Published by: Ari Ezra Waldman on Sep 24, 2010
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02/01/2013

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MEMORANDUM OPINIONPage - 1
HONORABLE RONALD B. LEIGHTONUNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT TACOMAMAJOR MARGARET WITT,Plaintiff,v.UNITED STATES DEPARTMENT OF THEAIR FORCE; et al,Defendants.Case No. 06-5195RBLMEMORANDUM OPINIONPlaintiff Margaret Witt challenges the constitutionality of the statute known as “Don’t Ask, Don’tTell” (“DADT”) found at 10 U.S.C. § 654, and its implementing regulations (in the case of the Air ForceReserve, through Air Force Instruction 36-3209). Witt claims that her discharge under DADT violated both her procedural and substantive due process rights under the due process clause of the FifthAmendment.This Court has jurisdiction over the claims raised in this case pursuant to 28 U.S.C. § 1331 and 28U.S.C. § 1346 because plaintiff’s claims arise under the Constitution of the United States, the laws of theUnited States, and a regulation of an executive department of the United States. This Court also has
Case 3:06-cv-05195-RBL Document 163 Filed 09/24/10 Page 1 of 15
 
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MEMORANDUM OPINIONPage - 2
 jurisdiction over the claims raised here under the Administrative Procedures Act, 5 U.S.C. § 702 et. seq.Trial was conducted from September 13, 2010 through September 21, 2010.
I. PROCEDURAL HISTORY
Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, thisCourt granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding thatthe regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factualfindings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timelyappealed.The Ninth Circuit agreed with plaintiff. It held that
 Lawrence v. Texas
, 539 U.S. 558, 123 S. Ct.2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basisreview to DADT and predecessor policies. It held that something more than traditional rational basisreview was required.
Witt v. Department of the Air Force
, 527 F.3d 806, 813 (9
th
Cir. 2008). The CircuitCourt vacated the judgment and remanded to the District Court the plaintiff’s substantive and proceduraldue process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. Onremand, this Court was directed to determine whether the specific application of DADT to Major Wittsignificantly furthers the government’s interest, and whether less intrusive means would substantiallyachieve the government’s interest.
Witt 
, 527 F.3d at 821.These two questions are central to the Court’s evaluation of the substantive due process claim.The procedural due process claim was not ripe when presented to the Ninth Circuit inasmuch as Major Witt had not yet been discharged and did not then allege she had been deprived of life or a propertyinterest in violation of her procedural due process rights. She has since been honorably discharged.
Case 3:06-cv-05195-RBL Document 163 Filed 09/24/10 Page 2 of 15
 
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MEMORANDUM OPINIONPage - 3
II. STANDING
This Court has previously determined that Major Witt has standing to pursue this action. She hassuffered an injury in fact which is concrete and particularized and actual, not conjectural or hypothetical.There is a causal connection between the injury and the conduct complained of and, finally, it is likely, asopposed to merely speculative, that the injury will be redressed by a favorable decision.
See Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560-561, 112 S. Ct. 2130 (1992). The Ninth Circuit confirmed thatWitt has standing.
III. “DON’T ASK DON’T TELL”
Congress adopted DADT in 1993. Following extensive fact-finding hearings, Congress madedetailed findings on the subject of gays and lesbians serving openly in the military. Those findingsdeserve mention here:(1)Section 8 of Article I of the Constitution of the United States commits exclusively to theCongress the powers to raise and support armies, provide and maintain a Navy, and makerules for the government and regulation of the land and naval forces.(2)There is no constitutional right to serve in the armed forces.(3)Pursuant to the powers conferred by Section 8 of Article I of the Constitution of the UnitedStates, it lies within the discretion of the Congress to establish qualifications for andconditions of service in the armed forces.(4)The primary purpose of the armed forces is to prepare for and to prevail in combat shouldthe need arise.(5)The conduct of military operations requires members of the armed forces to makeextraordinary sacrifices, including the ultimate sacrifice, in order to provide for thecommon defense.(6)Success in combat requires military units that are characterized by high morale, good
Case 3:06-cv-05195-RBL Document 163 Filed 09/24/10 Page 3 of 15

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