Metropolitan News-Enterprise


Thursday, July 7, 2011


Page 3


Ninth Circuit Revives Sweeping Injunction Against ‘Don’t Ask, Don’t Tell’


From Staff and Wire Service Reports


 The Ninth U.S. Circuit Court of Appeals yesterday reinstated a district judge’s order that the U.S. government immediately cease enforcement of its “Don’t Ask, Don’t Tell” policy barring openly gay persons from serving in the military.

In a two-page order, the panel—Chief Judge Alex Kozinski and Judges Kim M. Wardlaw and Richard A. Paez—said that circumstances have changed since a different panel of the court stayed Judge Virginia A. Phillips’s order last fall.

The panel noted that Congress repealed the policy in December, and that the government no longer defends the constitutionality of federally enforced discrimination against gays. “The circumstances and balance of hardships have changed, and (the government) can no longer satisfy the demanding standard for issuance of a stay,” the panel said.

While the government could seek en banc rehearing or seek a stay from the Supreme Court, the court order blocks the military from discharging anyone based on sexual orientation, a Pentagon spokesman said, news that brought relief from gay rights advocates who say there are still dozens of gay or lesbian personnel under investigation.

“The ruling ...removes all uncertainty—American servicemembers are no longer under threat of discharge as the repeal implementation process goes forward,” said R. Clarke Cooper, Log Cabin Republicans executive director. The gay Republican group brought the suit that resulted in Phillips’ injunction.

The Pentagon will comply with the court order and is taking immediate steps to inform commanders in the field, said spokesman Col. Dave Lapan.

Plan Due Friday

Defense officials said the chiefs of the military services are scheduled to submit their recommendations on the repeal to Defense Secretary Leon Panetta on Friday. 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.

Officials said they believe the ban could be fully lifted by the end of September. The officials spoke on condition of anonymity to discuss internal deliberations.

The services have been training their forces on the new law for the past several months. The Navy, Air Force and Marine Corps are largely done with the training, and the Army is on track to finish the active duty training by July 15.

Although the stay is lifted, the panel scheduled Aug. 29 arguments in Pasadena on the government’s appeal of the injunction. But it’s unclear whether the Pentagon will pursue the appeal, since defense officials already have said they’ll stop enforcing the ban.

Organizations that represent gay military members and veterans cautioned those on active duty or hoping to enlist against rushing to declare their sexual orientations until the government declares that it intends to abide by the ruling. During the eight-day period last fall before the Ninth Circuit put Phillips’ injunction on hold, several of the estimated 14,000 veterans who had been discharged under the policy unsuccessfully tried to re-enlist.

“As the news goes out over the wire, troops will see again, as they did last fall, that ‘DADT is dead’,” said an Air Force officer who co-founded a gay service member support group called OutServe and asked not to be identified by name for fear of being discharged. “More gay troops will think this is over; straight soldiers will inadvertently ‘out’ their friends. Since most of the troops have been trained, the best course is to let the decision stand.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said his group currently has a load of about 40 cases involving servicemembers who are under investigation for being gay or lesbian. Among the group’s clients are a man and a woman who appeared this year before base review boards that recommended their dismissals to the secretaries of their respective services, Sarvis said.

Although he thinks those clients are no longer in danger of being discharged and that further “don’t ask, don’t tell” investigations would be prohibited under the court’s order, Sarvis said that gay military personnel would remain unnecessarily fearful until President Obama, Defense Secretary Leon Panetta and Joint Chiefs of Staff Chairman Mike Mullen “get on with that important certification.”

Worldwide Application

The injunction has worldwide application. Phillips, who sits in Riverside and had ruled on Sept. 9 that the policy was unconstitutional, swept aside the government’s request for a more limited injunction, such as one that would only apply to members of the Log Cabin Republicans.

The judge declared that the statute and regulations implementing DADT violates the rights to substantive due process, free speech, and to petition the government for redress of grievances. She ordered the government to immediately stop enforcing the policy and “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under” DADT.

She also said the plaintiffs could apply for attorney fees under the Equal Access to Justice Act.

DADT, which was adopted after Congress blocked then-President Clinton from lifting all restrictions against service by openly gay persons, prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay. Under the 1993 policy, service men and women who acknowledged being gay or were discovered engaging in homosexual activity, even in the privacy of their own homes off base, have been subject to discharge.


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