Federal court finds "Don't ask, Don't tell" policy unconstitutional
Developments: 2010-OCT-13 to 19.
Request to stay District Court injunction.
Most news media, blogs, etc. generally take one of two positions on the proper response of the Obama administration to Judge Phillip's injunction that prohibited continuing enforcement of the the "Don't ask, Don't tell" (DADT) policy:
- Those that view the injunction as a bad idea generally pointed out that it is the administration's responsibility to appeal every instance whenever a law has been found unconstitutional by the courts, irrespective of the administration's opinion of the law.
- Those that view DADT as a bad law are amazed that the administration would appeal a law of which they disapproved.
2010-OCT-13 & 14: Confusion reigns:
In an astounding example of incompetence, the Obama Administration and the Defense Department appears to have been totally unprepared for the imposition by District Court Judge Philips of her injunction against the Don't Ask, Don't Tell policy:
- Judge Phillips filed her ruling on SEP-09 in which she found that the DADT policy violated two clauses in the U.S. Constitution.
- It took the Justice Department two full weeks to request that Judge Phillips delay her injunction.
- She issued her injunction on Tuesday OCT-12, over a month after her ruling.
- During the two days after the injunction was issued, stories spread that:
- An Email from the General Richard Harding, the Air Force's Judge Advocate General was circulated, stating that the Defense Department "will abide" by the injunction.
- The plaintiffs, the LCR, sent a complaint to the Pentagon stating that the military is in contempt of court for not ending DADT immediately.
- Defense Secretary Robert Gates warned of "enormous consequences" for troops if the court order is implementing He said that it should be up to the Congress and not the courts to end the policy. However, because a 60% vote in the Senate is required to end a filibuster, that appeared at the time to be an impossibility. (With the help of 8 Republican senators, the DADT repeal bill was passed and was signed into law by the president on 2010-DEC-22.
- There was speculation that the Justice Department will ask for a stay of the injunction from District Court Judge Phillips.
- There is more speculation that they have a backup plan in which they would ask the United States Court of Appeals for the Ninth Circuit for a stay of the injunction in the event that they don't obtain one from Judge Phillips.
- Robert Gibbs said time is running out for the ban on gays serving openly. He said: "This is a policy that is going to end."
- Col. David Lapan, a Pentagon spokesperson said that no written guidance had been issued to military commanders on how to deal with the injunction. 1
- A former servicemember who had been expelled for being gay attempted to reenlist. He was refused. 2
2010-OCT-14: Justice Department requests District Judge Phillips to stay injunction pending appeal:
As expected, the Obama administration filed a request with the federal District Court asking Judge Phillips to temporarily suspend her injunction that prevents the military from enforcing the DADT policy until after the government's appeal has been heard. The court filing said that the Pentagon will comply with the injunction and stop enforcing DADT for now.
In a memorandum attached to the filing, Clifford L. Stanley, undersecretary of defense for personnel and readiness, wrote:
"The military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas. ... [The injunction would] place gay and lesbian service members in a position of grave uncertainty."
The Pentagon also stated that the military is seeking an orderly end to the policy, but that an immediate termination would be chaotic for lesbians, gays and bisexuals who are currently serving in secret, and for the rest of the military itself.
Alexander Nicholson, executive director of Servicemembers United, a gay-positive group, said: "If they truly believe this is bad policy and it harms the military, I don't know why you would defend a policy that you truly believe harms national security." 3
OCRT webmaster's comment: Bias alert:
The legislation that failed in the Senate in late 2010-SEP would have phased out DADT in an orderly fashion and then only if/when the military:
- Had issued its assessment of DADT, due circa 2010-DEC-01,
- Had determined that it could be done without negatively impacting military readiness, or troop morale, and
- Had prepared an implementation plan.
There is a great deal of hatred directed towards gay, lesbian, and bisexual servicemembers. To implement a world-wide ban instantly without careful preparation might not allow sufficient time to defuse this hatred. That could easily result in many assaults and even assassinations of sexual minorities by fellow servicemembers.
That said, since:
- 77% of the American public supports and end to DADT; 33% oppose it. More details.
- The House has passed a bill to phase out DADT.
- Most Senators favor passing a similar bill, but the chance of it passing seemed slim because of the Senate's filibuster rules.
- The Pentagon favors phasing out DADT.
- The Obama administration favors phasing out DADT.
- The injunction was in place as of 2010-OCT-1. Whatever disruption this caused is presumably now beginning to dissipate as service members become accustomed to the new policy.
- To stay the injunction would cause further disruption in the military.
then the most reasonable course would seem to have been to let the injunction remain in force, and to not appeal the case. However, the administration does have an obligation to do so.
2010-OCT-19: Military recruiters told to accept lesbian & gay applicants:
Pentagon spokesperson Cynthia Smith said that the Don't Ask, Don't Tell policy has been suspended. Recruiters were told of this development and also asked to inform potential recruits that the moratorium could be reversed at any time. 4 However, later reports indicate that the DADT policy is still in force and will remain so well into 2011.
The story continues....
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- Robert Burns, "Group says Air Force has stopped enforcing gay ban," Associated Press, 2010-OCT-14, at: http://www.google.com/
- Michelangelo Signorile Show, Sirius Radio, 2010-OCT-14.
- Evan Perez, "U.S. Seeks to Delay 'Don't Ask' Injunction
," Wall Street Journal, 2010-OCT-15, at: http://online.wsj.com/
- Anne Flaherty, "Military recruiters told to accept gay applicants," Associated Press, 2010-SEP-19, at: http://news.yahoo.com/
Copyright © 2010 by Ontario Consultants on
Originally written: 2010-OCT-14
Latest update: 2010-DEC-31
Author: B.A. Robinson