Aubrey Sarvis

Activists pushing for repeal of Don’t Ask Don’t Tell delivered on a threat Monday and filed a third lawsuit aimed at having the courts strike the military’s ban on openly gay people.

The lawsuits represent what Defense Secretary Robert Gates and the nation’s top military leaders say they fear the most: that the courts will find the military’s ban on openly gay people unconstitutional. And such a ruling, they fear, will provoke an order to stop enforcing that ban—immediately.

It has happened. Just last September, a federal district court judge in Riverside, California, ruled in Log Cabin Republicans v. U.S. that the Don’t Ask Don’t Tell (DADT) law was unconstitutional. Two weeks later, another district court judge made a similar ruling in Witt v. U.S. Then, in October, the judge in Log Cabin issued an order that the military to stop its enforcement of DADT, globally and immediately. Secretary Gates said at a Senate hearing earlier this month that the court rulings, the injunction against enforcement of DADT, and a subsequent stay of that injunction created several weeks of enormous confusion and distraction for military leaders, wrestling with how to enforce the law and court rulings. He urged the Senate to pass the repeal measure, saying, “I worry that unpredictable actions in the court could strike down the law at any time, precluding the orderly implementation plan we believe is necessary to mitigate risk.”

But the Senate has twice now refused to break a Republican-led filibuster that is currently blocking consideration of the repeal measure. The repeal language is part of an annual defense authorization bill, and 42 Republican senators signed onto a letter saying they would not consider any bill until Congress passes a Republican-favored measure extending tax cuts, including to very wealthy Americans.

Both Log Cabin and Witt are on appeal in the 9th Circuit U.S. Court of Appeals. And Monday, lawyers for Servicemembers Legal Defense Network filed a third lawsuit—in that same circuit.

This week’s lawsuit is pending now in federal district court in San Francisco and, like the other lawsuits, seeks a declaration that DADT is unconstitutional. It also seeks reinstatement for three servicemembers who were discharged under the law.

SLDN warned prior to last week’s failed vote on the filibuster that it would begin filing lawsuits to step up efforts to repeal the law, should Congress fail to.

“This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law,” said Aubrey Sarvis, head of SLDN. “This dispute can be resolved by Congress or by the courts. With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country.

SLDN says it is preparing to file additional lawsuits, too.

“Another suit we’re working on involves clients discharged under ‘Don’t Ask’ who want to enter the reserves or a guard unit, and we plan to file such cases early next year if Congress fails to act. Clearly there is an urgent need for the Senate to act on legislation this week.”

The lawsuit filed Monday is Almy v. U.S. The lead plaintiff is Michael Almy whose discharge has been of particular focus because his discharge was initiated after military personnel searched the files of a computer Almy was allowed to use for personal emails while he was in Iraq. (Use of personal computers was not allowed, for security purposes.) Almy’s commander confronted Almy with an email exchange with a male friend discussing same-sex conduct and “pressured him to acknowledge he is gay,” says the lawsuit. Almy’s experience is seen as important to establishing that not all servicemembers discharged under DADT initiate the discharge proceedings themselves by volunteering that they are gay.

Almy is a resident of Washington, D.C. and served as a communications officer in the U.S. Air Force for 13 years, including four tours to the Middle East, before being discharged, at the rank of major, in 2006.

Anthony Loverde is a resident of San Francisco and served seven years as a C-130 technician. Loverde took the initiative to inform his superior officers that he was gay because “he could no longer continue pretending to be someone he was not.” Loverde made clear he would like to continue serving but was discharged in 2008 at the rank of staff sergeant.

And Jason Knight is a resident of California and served five years as a linguist before being discharged in 2005 at the rank of petty officer second class in the Navy. Knight’s sexual orientation became known after he provided copies of documents relating to the annulment of his marriage to his commander, along with a statement explaining that he is gay. But in Knight’s case, the Navy called him back into active duty in 2006 in Kuwait as a Hebrew linguist then discharged a second time under the policy in 2007.

Like the other lawsuits, Almy v. U.S. contends that DADT violates the servicemembers constitutional rights to due process, equal protection, and the First Amendment rights to freedom of speech and association.

The Senate is expected to take several votes this week related to the tax cut extension measure, but it is uncertain whether it will reach consideration of a new standalone bill seeking repeal of DADT. That standalone bill was introduced following the failed vote to break the filibuster on the defense spending bill last week.