July 16, 2011 at 12:24 pm EDT | by Chris Johnson
Court order upholds ban on ‘Don’t Ask’ discharges

A federal appellate court issued an order late Friday prohibiting the U.S. government from discharging additional service members under “Don’t Ask, Don’t Tell” while allowing recruiters to continue to bar openly gay people from enlisting in the armed forces.

The order from the U.S. Ninth Circuit Court of Appeals partially reinstates a stay on an injunction barring the enforcement of “Don’t Ask, Don’t Tell.” The injunction was reissued by the appellate court last week after it was first issued by a U.S. district court last year.

“[T]he stay entered November 1, 2010, is reinstated temporarily in all respects except one,” the order states. “The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”

The decision comes from a three-judge panel within the Ninth Circuit made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez.

An injunction barring the Pentagon from discharging service members under “Don’t Ask, Don’t Tell” means prohibiting open gays from enlisting in the armed forces is the only part of the law remaining in effect.

The Ninth Circuit partially reinstated the stay upon request from the Obama administration, which on Thursday requested an emergency stay on the injunction that was issued in the case of Log Cabin Republicans v. United States.

The injunction was first put in place last year by U.S. District Court Judge Virginia Phillips last year after she determined that “Don’t Ask, Don’t Tell” was unconstitutional, but only lasted for eight days before the Ninth Circuit placed a stay on the order upon request from the U.S. government. The order from the appellate court last week reversed this decision.

Eileen Lainez, a Pentagon spokesperson, said the Defense Department is “studying the appellate court’s order” with the Justice Department and “will continue to provide guidance to the field as appropriate.”

“The temporary transition that Congress and the President established as a prerequisite to the repeal of [‘Don’t Ask, Don’t Tell’] has been underway for several months and we are nearing presenting certification for decision to the president, the secretary of defense and the chairman of the Joint Chiefs of Staff in the next few weeks,” she added.

A spokesperson for the Justice Department declined to comment.

In a brief filed prior to order coming down from the Ninth Circuit, Log Cabin Republicans asserts the court should keep the injunction in place because U.S. government cannot justify the continued expulsion of service members under “Don’t Ask, Don’t Tell.”

“The parties, and thousands of gay and lesbian servicemembers now serving honorably but in silence, would be left whipsawed, wondering from day to day what the current state of their constitutional rights might be,” the filing states.

Alex Nicholson, executive director of Servicemembers United and sole named veteran plaintiff in the lawsuit, said the Ninth Circuit “did the right thing” in rejecting the U.S. government’s request to reinstate “Don’t Ask, Don’t Tell” in full.

“The situation with finally ending this outdated and discriminatory federal policy has become absolutely ridiculous,” Nicholson said. “This law is unconstitutional on its face, it is virtually dead in practice, and no one should be trying to resuscitate it at this point. The executive branch has been exceptionally unreasonable in the amount of time it has now let the legislative certification process drag out. It is simply not right to put the men and women of our armed forces through this circus any longer.”

Under the repeal law signed in December, “Don’t Ask, Don’t Tell” will be off the books when 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staff certify the U.S. military is ready for open service. Troops have been participating in training since February to prepare for “Don’t Ask, Don’t Tell,” but certification has yet to take place.

The Ninth Circuit says its placing a partial stay on the injunction it previously issued last week because of new information that the U.S. government presented this week in its request for an emergency stay.

The court says it was previously not informed that only one service member had been discharged under “Don’t Ask, Don’t Tell” since the passage of repeal legislation.” Nor did it know that the service chiefs had provided written advice to Pentagon leadership on the status of repeal or that certification is expected to happen “in a matter of weeks, by the end of July or early in August.”

“Appellants acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act,” the court writes.

Additionally, the court directs the U.S. government to provide no later than 5 pm Pacific Time on Monday a supplement brief on why it didn’t present this information in an earlier filing dated May 20.

Plaintiffs have a deadline of Thursday to file an opposition to the U.S. government’s motion for reconsideration on the injunction. The U.S. government has deadline of Friday to respond to that brief.

Expulsions under “Don’t Ask, Don’t Tell” have been virtually nonexistent since the Pentagon instituted new guidance in October raising the discharge authority to the military service secretaries “in coordination” with the under secretary of defense for personnel and readiness and the Pentagon general counsel.

According to the request for an emergency stay issued this week, the Defense Department has only finalized the separation of one service member since the new guidance was put in place.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • Politics is disgusting. Anyone who wants to make a true impact in life should never become a politician. This policy is so stupid. Obama want’s it to be repealed when it looks as if he had everything to do with it. This is so transparent, that when he actually finally signs to have it repealed, he will look like an idiot since it is his administration that keeps putting up these fights in court. It’s clear he wants it repealed when it looks like he is the one in charge. He constantly shouts how equality is something that takes time. He is a black man! If anything, he should want to rush this through. What is he doing? Jeez :/

  • My husband was in the Marine Corp, and he thinks it’s a bad idea. Everyone in his squadron was very masculine, and he just didn’t think it would be a good environment for homosexuals. He says there’s a big difference between people hiding it, and being given the go ahead to be openly gay; openly gay means they could hit on the men around them, and he does not think that would go over well at all. He also said the reason women aren’t currently allowed in combat is because the primary focus needs to be accomplishing the assigned goals; if there were ever any romantic entanglements then some might place a higher priority on protecting one life than on accomplishing the goals of the group. If there are homosexual relationships, this could undermine those goals.

    From my perspective, I can’t imagine electing to go into a career where I was told I would have to shower with men. I can’t see a distinction for straight men being told they have to shower with gay men. I also think, quite simply, that the military has a very specific function, to protect the citizens of this country. They have always had higher standards of conduct. It’s not the place to be forcing perceived civil justice in the name of equality.


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