Pentagon halts enforcement of gay ban amid legal challenge

October 14, 2010
Pentagon halts enforcement of gay ban amid legal challenge
By Nancy A. Youssef | McClatchy Newspapers

WASHINGTON — The Pentagon Thursday halted enforcement of its "don't ask, don't tell" policy pending an appeal of a federal court order prohibiting the government from expelling gays and lesbian soldiers who disclose their sexual orientation.

The Obama administration also on Thursday asked U.S. District Judge Virginia Phillips to stay her order, issued Tuesday. It's unclear, however, whether Phillips will do so.

The government last month asked her not to issue an injunction against "don't ask, don't tell" after she found that the 17-year-old policy, which bars gays and lesbians from disclosing their sexual orientation, violated service members' First Amendment rights. Phillips, however, issued the injunction on Tuesday.

If Phillips rejects the stay request, the government still could appeal to the 9th U.S. Circuit Court of Appeals and ultimately to the U.S. Supreme Court, but there is no certainty on how either court would rule.

The government asked Phillips to rule on the stay by 3 p.m. Monday.

Thursday's government action raised the stakes in the "don't ask, don't tell" debate, which has languished since President Barack Obama called last year for Congress to repeal the 1993 law that codified the policy and has become a thorny political issue just days before the November elections. While the House has passed repeal legislation, the Senate refused in September to consider a defense budget bill that included the repeal.

In seeking the stay, the Obama administration said a precipitous change in the government's longtime ban on gays in the military could disrupt combat operations and endanger gays and lesbians whose sexual orientation becomes known. It noted that the Pentagon is studying the effects of allowing gays and lesbians to serve openly and that Congress is considering repealing the law that established "don't ask, don't tell."

"A court-ordered injunction, operating precipitously and directly on all military and civilian Defense Department personnel throughout the world, would undermine the credibility and validity of the entire process that the political branches have undertaken for an orderly repeal of DADT, and may make the transition to repeal not only far more difficult, but also potentially disruptive to military readiness," the Justice Department wrote.

Obama repeated his call for Congress repeal the law Thursday, but defended his administration's decision to appeal Phillips' ruling.

"Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally, so this is not a situation in which with a stroke of a pen I can simply end the policy," Obama said at a question-and-answer session with young people on MTV. "It has to be done in a way that is orderly, because we are involved in a war right now.

"This policy will end, and it will end on my watch," he said. "But I do have an obligation to make sure that I'm following some of the rules. I can't simply ignore laws that are out there."

Dan Woods, the lawyer who brought the lawsuit that led to Phillips' injunction, however, said gays and lesbians had waited long enough for the political branches of government to act.

"We are not surprised by the government's action, as it repeats the broken promises and empty words from President Obama avowing to end 'don't ask, don't tell' while at the same directing his Justice Department to defend this unconstitutional policy," Woods said. "Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic homosexuals are serving in our Armed Forces to fight for all of our constitutional rights while the government is denying them theirs."

The Pentagon appeared to have been caught flat-footed by Phillips' injunction, even though she'd promised a month ago that she would issue it. It took 48 hours before the Pentagon acknowledged that it would halt proceedings against gay service members in response to Phillips' order.

Even then, many key questions seemed to be without answers. For example, Pentagon officials said they didn't know whether they'd seek to expel service members who declare their sexual orientation after Tuesday's order if a stay is eventually granted or a government appeal is successful.

In an e-mail sent out in the late afternoon, even the possibility of seeking a stay and appealing the decision wasn't clear.

"The U.S. Government is contemplating whether to appeal and to seek a stay of the injunction," the statement said. "The Department of Defense will of course obey the law and will abide by the terms in the court's ruling, effective as of the time and date of the ruling."

Earlier, a Pentagon spokesman, Marine Col. David Lapan, told reporters that there was a "de-facto moratorium" on "don't ask, don't tell" actions.

Some legal analysts said that overturning "don't ask, don't tell" through court order rather than congressional action risked turning the policy into a divisive political issue much like abortion after the Supreme Court's 1973 Roe v. Wade ruling declared that abortion restrictions violated women's privacy rights.

"There are some people who are going to say (the courts' decisions) are illegitimate, that elected officials should change laws," said Prof. Daniel R. Ortiz of the University of Virginia Law School. "Others will say the court did the right thing."

Ortiz said a decision on granting the stay will turn on whether Phillips' court, or any of the other courts that might consider the request, thinks that the government appeal will be successful. If the courts agree that the government has solid grounds for an appeal, they're likely to grant a stay. If, however, they think the law is probably going to be declared unconstitutional anyway, a stay is unlikely.

It could be years before the actual appeal winds its way through the courts.

(Margaret Talev contributed to this article.)


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