Locals react as judge upholds ‘Don’t Ask, Don’t Tell’ injunction

When East Bay resident Michael Hughes joined the US Navy in 1996, fear of retribution and discharge from service kept him from publicly discussing his sexual orientation. The military’s “Don’t Ask, Don’t Tell” policy, passed by Congress in 1993, prohibits those who are openly gay from serving in the armed forces. Last week, a federal judge ordered an injunction putting a temporary halt to the policy and on Monday issued a tentative ruling to uphold that injunction. With the judge’s ruling, Hughes said, Americans are “one step closer to liberty and justice for all.”

The 2004 suit that brought the constitutional questions regarding Don’t Ask, Don’t Tell to U.S. District Judge Virginia Phillips’ Riverside, California, courtroom was filed by the Log Cabin Republicans, a conservative group that advocates for gay rights. Log Cabin Republicans v The United States of America alleged that the policy violates protections of due process and freedom of speech for gay and lesbian Americans. Phillips ruled in favor of the Log Cabin Republicans in September, 2010, deciding that Don’t Ask, Don’t Tell is unconstitutional.

On October 12, Phillips granted an injunction—a court order to cease enforcement—halting Don’t Ask, Don’t Tell-related dismissals. On Monday, Phillips tentatively denied the Justice Department’s request to delay the injunction while the case is being appealed. After reviewing the arguments, Phillips said the government did not provide sufficient evidence to show that the military would suffer as a result of the injunction.  Phillips’ final decision is planned for release on Tuesday.

Prior to Don’t Ask, Don’t Tell, a 1981 Department of Defense ban prohibited gay and lesbian people from serving in the military in any capacity. In 1993, President Bill Clinton commissioned a study to consider a potential repeal of the ban, a move that drew the ire of his Joint Chiefs of Staff and members of Congress.  From the controversy, “Don’t Ask, Don’t Tell, Don’t Pursue” emerged, a policy that allowed closeted homosexuals to serve as long as they did not explicitly reveal their sexual orientation. Since its inception, the policy has been responsible for the dismissal of over 13,000 service members, including Arabic translators whose services are needed in the ongoing conflicts in the Middle East.

If Phillips’ final ruling upholds her injunction, the policy will remain suspended for the time being. Representatives from the US Attorney’s Office have indicated that they will then appeal the case to the 9th Circuit Court of Appeals in San Francisco.  From there, the case could be appealed to the US Supreme Court, if the court decides to hear the case.  If Phillips instead decides to stay her injunction, Don’t Ask, Don’t Tell will remain in effect.

In Oakland, some locals were pleased with the judge’s tentative Monday ruling. M. Renee Huff, an attorney and executive board member of Oakland Pride, Inc., a group that advocates for gay and lesbian rights and interests, said that she was glad the judge was able to stand behind a decision some might consider controversial. “I personally feel that Judge Phillips has demonstrated her strength of character,” Huff said. “It is not easy to do what is right when it is not necessarily popular. And she did just that by granting the injunction.”

Hughes, a veteran who served for four years as a Navy translator and now lives in Berkeley, said that Don’t Ask, Don’t Tell reflected the nation’s attitude toward homosexuality when it was passed in 1993. Now that there is significant political support for gays in the military, he said, America is ready for a new policy. “The statistics show that this is something a majority of citizens wants, a majority of the military wants,” Hughes said. “I think gay Americans have always had an important role in the military and will continue to do so, closeted or not.”

Department of Defense officials have said the military will abide by the judge’s October 12 injunction as long as it stands and have currently halted Don’t Ask Don’t Tell discharges.

But according to the American Forces Press Service, undersecretary of defense Clifford L. Stanley filed a deposition with Phillips’ court, writing that the immediate and worldwide cessation of Don’t Ask, Don’t Tell enforcement required by the injunction would “cause significant disruptions to the force in the short term and, in the long term, would likely undermine the effectiveness of any transition to accepting open service by gays and lesbians in the event the law is repealed or eliminated.”

Some gay rights advocates are cautious about whether gay people serving in the military should divulge their sexuality now that the injunction is in place. Huff said that closeted service members should be wary of the decision’s impermanence. “It depends on whether or not the injunction is held in place,” Huff said. “If the injunction is considered the final ruling, the legal effect is that you can ask and you can tell until a later court determination.  That’s the legal effect.  It’s what happens in practice, that is the real question.”

Though it is uncertain how long the injunction will remain in effect, Hughes said that any step toward repeal of the policy is an important step for everyone in America, gay or straight. “I really believe this decision benefits the nation,” Hughes said. “The ending of Don’t Ask, Don’t Tell is imperative to the health of our country.”

8:30 PM UPDATE: Since this article was published, U.S. District Judge Virginia Phillips officially denied the Justice Department’s request for a stay of the Don’t Ask, Don’t Tell injunction late Tuesday, affirming the tentative decision she had made on Monday.  The government’s option now is to appeal the case to the 9th Circuit Court of Appeals in San Francisco.

Lead image: Michael Hughes, an openly gay veteran, said the social climate has prepared America for a repeal of Don’t Ask, Don’t Tell.