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US federal claims court hears gay military members discharge pay suit

The US Court of Federal Claims [official website] on Thursday heard arguments [ACLU press release] regarding a class action lawsuit challenging a government policy that halves severance pay of service members who have been honorably discharged for being gay. The American Civil Liberties Union (ACLU) [advocacy website] filed the lawsuit [JURIST report] in November 2010 on behalf of all service members involuntarily discharged in the last six years who were otherwise eligible to receive full separation pay, but instead received only half as a result of the separation pay policy. The ACLU argues that the policy is discriminatory and unconstitutional, while the US Department of Justice (DOJ) [official website] maintains that Defense Secretary Leon Panetta [official profile], and not the courts, has sole discretion to determine severance pay allocation. ACLU Lesbian Gay Bisexual and Transgender Project staff attorney Joshua Block said gay military members deserve equal benefits:

The government is too embarrassed to defend the constitutionality of its policy in open court, so it is inventing new reasons to deny these service members justice. These veterans served their country honorably and deserve the full recognition and benefits that are afforded to other service members. The sums they seek are small to the military, but make a huge difference when readjusting to civilian life.
Judge Christine Odell Cook Miller indicated that she would likely permit the case to continue [AP report] and will issue her official ruling on the government's motion to dismiss before October 15.

The DOJ asked the court to dismiss the lawsuit just two days after the repeal [JURIST report] of Don't Ask, Don't Tell (DADT) [10 USC § 654; JURIST news archive] officially took effect [memo, PDF]. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. The separation pay policy, unlike DADT, can be changed without congressional approval. The repeal of DADT took effect as scheduled despite opposition from some. Four days before the repeal was scheduled to go into effect, two Republican Congressmen sent a letter to Panetta asking to delay the repeal [JURIST report] of DADT. Earlier this month, lawyers for the DOJ asked the US Court of Appeals for the Ninth Circuit [official website] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, Obama, Panetta and the Joint Chiefs of Staff certified DADT's repeal [JURIST report], scheduling the policy to end on September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.

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