Court: "Don't ask, don't tell" in place, for now
LOS ANGELES -- The military's "don't ask, don't tell" policy is back in place for the time being, with one major caveat: the government is not allowed to investigate, penalize or discharge anyone who is openly gay.
A San Francisco federal appeals court ordered the military to temporarily continue the controversial policy in an order late Friday, the court's response to a request from the Obama administration.
The order is the latest twist in the legal limbo gay service members have found themselves in as the policy is fought in the courts simultaneous to its slow dismantling by the federal government, which expects to do away with it by later this year.
In its three-page ruling, the U.S. 9th Circuit Court of Appeals said the ruling was based on new information provided by the federal government, including a declaration from Major General Steven A. Hummer, who is leading the effort to repeal the policy.
"In order to provide this court with an opportunity to consider fully the issues presented in the light of these previously undisclosed facts," the court wrote, that it would uphold an earlier order to keep the policy in place.
The court of appeals had halted "don't ask, don't tell" July 6 but the Department of Justice filed an emergency motion Thursday saying ending the policy now would pre-empt the orderly process for rolling it back, per a law signed by President Barack Obama in December.
The ruling was supported by Servicemembers United, an organization of gay and lesbian troops and veterans, but the group's executive director Alexander Nicholson voiced frustration over the slow process of dismantling "don't ask, don't tell."
"The situation with finally ending this outdated and discriminatory federal policy has become absolutely ridiculous," said Nicholson. "It is simply not right to put the men and women of our armed forces through this circus any longer."
The Department of Justice said in a statement that it asked the court to reconsider its order "to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal."
It said senior military leaders are expected to make their decision on certifying repeal within the next few weeks. In the meantime, the Justice Department said "it remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline."
The Justice Department noted that the Defense Department has discharged only one service member since Congress voted to repeal the policy, and that was done at the request of the service member.
Last year's ruling by the appeals court stemmed from a lawsuit filed by the Log Cabin Republicans against the Department of Justice.
The gay rights group persuaded U.S. District Court Judge Virginia Phillips to impose a worldwide injunction halting the ban last October, but the appeals court granted the government a stay, saying it wanted to give the military time to implement such a historical change.
The Log Cabin Republicans asked the court Friday to deny the motion, saying "an on-again, off-again status of the District Court's injunction benefits no one and plays havoc with the constitutional rights of American service members."
The plaintiff said while only one service member has been discharged since the congressional vote, three others have been approved for discharge by the secretary of the Air Force but the processing of those actions have been "stopped in their tracks" by the court's order. Granting the stay the government wants would allow it to act on those discharges and also allow it to put recent applicants from gay enlistees in limbo, the group said.
Justice Department attorneys said in their motion Thursday the grounds for keeping the stay in place are even stronger today than they were when this court initially entered the stay, and that disrupting the process set out by Congress would impose "significant immediate harms on the government."
The chiefs of the military services submitted their recommendations on the repeal to Defense Secretary Leon Panetta last week. As soon as the Pentagon certifies that repealing the ban will have no effect on military readiness, the military has 60 days to implement the repeal, which could happen by September.
Lt. Col. Paul Hackett, a lawyer in the Marine Corps Reserve, said military officials are ready for the change and there is no need for a delay.
"We're already taking steps to implement it," he said. "Politicians do what politicians do for whatever their political need is. It's an election year, so somebody is obviously taken that into consideration. I suspect that's what driving this."
Friday's order lays out a schedule for anticipated objections and motions from both sides: the Log Cabin Republicans have until 5 p.m. Thursday to file opposition to today's motion, and the federal government has until 5 p.m. the next day to file a reply supporting it.
The court also asks the federal government to explain by close of business Monday why the information on implementation of the Repeal Act wasn't provided sooner.
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