Joshua Block represents Richard Collins, at left, a former US Air Force Staff-Sergeant, in a class-action suit claiming that the "Don't ask, Don't tell" (DADT) rule violates the rights of the former service members under the equal protection and right to substantive due process components of the Fifth Amendment. Because Mr. Collins is gay, his separation pay had been cut in half. He sought help from the ACLU, and the organization filed a national class action.The Collins lawsuit challenges the separation pay policy. "When the DADT repeal is fully implemented, service members will no longer be discharged because they are gay and future service members will not be affected, nor will they have their severance pay cut in half," says Block. "Our lawsuit is still very much alive because we represent a class of at least 100 or more service members who had their separation pay cut in the past six years and these members still need to be made whole."
At this time, the Administration hasn't told the ACLU what their position is going to be when they have to respond to the suit. "They [the Administration] received an extension of time from the court so their response isn't due until March, but it would seem untenable to us—after everything has been done to repeal the DADT—for the Administration to turn around and try to defend a separation pay policy that is at least as discriminatory and unfair and unconstitutional as this DADT statute was."
Where did this half-pay rule come from in the first place? Block says it is an old internal regulation the Department of Defense had in place even before the DADT rule was enacted. "It was put into place at a time when the military viewed homosexuality as a form of misconduct," says Black, "which makes the 'Don't ask, Don't tell' rule even less draconian."
Still to be determined is how the Administration is going to address the gay combat issues. "I think these issues are being studied by the President, Joint Chiefs and the Pentagon, and I think they are going to put together an implementation plan that will tell us a lot more about how exactly the Administration will address this situation," adds Block. "Gay service members have been in combat situations in the past and will continue to do so.
"We have a separate lawsuit challenging unequal spousal benefits, which is a separate discrimination statute called the 'Defense of Marriage Act' that prohibits the government from treating same-sex couples as married, even if their state treats them as married."
Obviously, today is a good day, but Block and the ACLU have many more good days to attain.