Earlier this afternoon, in another blow to Don’t Ask, Don’t Tell, a federal district judge in Washington ruled that former Air Force Major Margaret Witt — who was discharged under the ban — should be reinstated to her job. Judge Ronald B. Leighton found that the policy “violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.” “She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable,” he concluded.

Leighton dismissed Witt’s case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent which prevented the military from discharging servicemembers under the policy in that circuit unless it could prove that it furthered military goals. The 9th Circuit sent the case back to Leighton and today he ruled that the government did not meet that burden of proof:

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect….. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds. [...]

These surveys and polls are some evidence that there may be persons in the 44th AES who would prefer that gays and lesbians not serve openly within their unit but such preferences are not outcome determinative here. The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be. [...]

Again, these polls are some evidence that some folks would prefer to not serve with admitted homosexuals. That such views may lead to a drop in recruitment or retention is a possibility, just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.

The Seattle Times notes that this is the “first time since Congress approved the policy in 1993 that a federal judge has ordered the military to allow an openly gay service member to serve in the armed forces.”

“You have been and continue to be a central figure in a long-term, highly-charged civil rights movement,’ said Leighton, speaking directly to Witt. “That role places extraordinary stresses on you, I know. Today, you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon, the political branches of government.”

Read the full ruling HERE.

Just a day after the Justice Department asked a federal district court to limit an injunction against enforcing Don’t Ask, Don’t tell, 69 progressive Democrats in the House have written a letter asking DOJ not to appeal the judge’s decision in the case:

Mr. President, in this critical time when military readiness is paramount we must recognize the importance of every linguist, flight nurse and infantryman. As you announced our official end of combat operations in Iraq we must prepare for what is to come. To stay above the rest, to maintain the most formidable military force in the world, we must innovate, change and grow. As we update our weaponry and strategy, so too must we open our policy to encourage as much cohesiveness and camaraderie as possible. In the military were lives rely on trust and determination, DADT represents neither.

We consider this matter a top priority to our service members, the American people and the security of the United States. We acknowledge and appreciate your support and hope that together we can end this dishonorable policy once and for all. We hope that you, as the Commander-in-Chief of the Armed Services, will take this opportunity to restore integrity to our military and decline to appeal Judge Phillip’s ruling.

Indeed, following the successful filibuster of the defense appropriations bill, a growing number of progressives have begun pressuring the White House not to appeal the judge’s decision, seeing it as the most likely scenario under which the White House can live up to its pledge and end the policy before the end of the year.

The other two options are becoming increasingly improbable. The President could use his “stop loss” authority to issue an order “prohibiting the Secretary of Defense—and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy—from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order should further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces” and include a ban on “further dismissals on the basis of DADT.” Alternatively, the Senate leadership could attempt to pass the defense authorization bill in the aftermath of the midterm elections.

But it’s likely that the looming Democratic defeat in November would only strengthen supporters of DADT, making it far more difficult for the Senate to pass the defense measure with the gradual repeal amendment. Republicans have already unleashed a campaign to prevent the so-called lame duck Congress from taking up important progressive legislation and Democrats have shown no indication that they’re capable of standing up to the GOP bullying. A further complicating factor is the Working Group, which is scheduled to release its findings on December 1st and will likely provide supporters of repeal with further ammunition with which to delay any legislative action.

Similarly, the President, who has thus far been reluctant to upset the repeal compromise the Democrats struck with Secretary of Defense Robert Gates, would have to issue his order after voters had presumably “rejected” the so-called Obama agenda. If anything his instincts will be telling him to move to the right, rather than the left.

The Department of Justice DOJ has an obligation to defend existing law, but as the Palm Center laid out on Wednesday, “it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” As the 69 Democrats write, this case is that exception because the policy is unjust and declining to appeal its unconstitutionality is one of a shrinking list of options the administration has if it’s to live up to its obligations.