‘Don’t Ask, Don’t Tell’ temporarily reinstated

on October 21, 2010

Don’t Ask, Don’t Tell, the policy that forbids gays from serving openly in the military, is now being enforced again, after a federal appellate court granted the Justice Department’s request to keep the policy in place while a case challenging its constitutionality is being decided.

Since U.S. District Judge Virginia Phillips’ ruled the policy unconstitutional in early September, the policy’s status has been in limbo as U.S. attorneys and judicial officials have sparred over whether or not to bar discharges of openly gay service members while the case is under review. Gay advocates have followed the process with both optimism and frustration as conflicting decisions have been handed down over the recent work.

Don’t Ask, Don’t Tell was passed by Congress in 1993, a compromise that allowed gays and lesbians to serve in the military as long as they did not publicly discuss their sexual orientation. Violations of the policy could lead to discharge from the military. Over 13,000 American service members have been discharged since the policy took effect. The Log Cabin Republicans, a conservative organization that advocates for gay rights, brought a suit against the United States in 2004, arguing that the policy violates due process and first amendment rights.  Their case has been in court ever since.

On September 9, Phillips’ ruling in Log Cabin Republicans v The United States of America found the policy to be unconstitutional. On October 12, she placed an injunction on Don’t Ask, Don’t Tell, compelling the military to cease discharges related to the policy. Despite a request by the Justice Department to lift the injunction while the case is under review, Phillips finalized a decision late Tuesday to deny the government a stay. At that time, Department of Defense officials stated they would comply with the judge’s ruling.

On Wednesday, Department of Justice lawyers brought the case to the 9th Circuit Court of Appeals, which granted their request for a stay, reinstating Don’t Ask, Don’t Tell worldwide. Gay rights advocates will have an opportunity on Monday, October 25, to persuade a three-judge panel to prevent discharges related to the policy while the appeal is heard, a process that could continue for months.

Some local gay advocates were not surprised by the sudden policy reversal. 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 injunctive relief for a social issue is rare. She had anticipated that Phillips’ decision to uphold her stay earlier this week might be reversed. “Legally speaking, I’m not surprised, but as a lesbian woman, I’m saddened,” Huff said. “While there seems to be some promise on the horizon, a bait and switch phenomenon has occurred.  People were told in the military that it’s safe to come out, and now it’s been reversed.”

In the three weeks after Phillips’ injunction, some gay veterans reportedly attempted to re-enlist. Now there is an open question about what will happen to those individuals and others service members who came out during that time.

Huff said the fate of recently outed service members is uncertain, but there is a legal argument for the preservation of their positions. “The people that came out in that brief window, they were within the law,” Huff said. “There is a possibility that those people will not be discharged, depending on how the courts decide to treat those people.”

Read more about Judge Phillips’ rejection of the government’s request for a stay.

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Photo by Basil D Soufi
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