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!!!!!!!! Search error!  If the URL ends something like .htm/  or .htm# delete the character(s) after .htm and hit return.

Federal court finds "Don't ask, Don't tell" policy unconstitutional

Developments: 2010-OCT-20 to NOV-12. Federal
District court, Court of Appeals, Supreme Court.

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Prior activity

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2010-OCT-20: Appeals court blocked lower court's injunction:

The Justice Department filed an emergency motion, asking a three-judge panel of the 9th Circuit Court of Appeals to temporarily block the district court's injunction that had halted enforcement of the DADT policy. Judges Diarmuid F. O'Scannlain, Stephen S. Trott, and William A. Fletcher stated:

"If not stayed immediately, the district court’s order precludes the administration of an Act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute. ... Although the Administration has called for a repeal of the statute, it has made clear that repeal should not occur without needed deliberation, advance planning, and training. To that end, the Secretary of Defense established the Comprehensive Review Working Group, which is currently nearing completion of a comprehensive review of how best to implement a repeal of § 654. The Working Group has visited numerous military installations across the country and overseas, where it has interacted with tens of thousands of service members on this issue. The Working Group has also conducted an extensive, professionally developed survey that was distributed to a representative sample of approximately 400,000 service members. An abrupt, court-ordered end to the statute would pretermit the Working Group’s efforts to ensure that the military completes development of the necessary policies and regulations for a successful and orderly implementation of any repeal of § 654. The significant impairment of the Department’s efforts to devise an orderly end to the statute would cause irreparable harm." 1

On OCT-20, the panel agreed, stating:

"We conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay. ... " 2

"The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented." 3

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2010-NOV-06: The Log Cabin Republicans approach the U.S. Supreme Court:

The Log Cabin Republicans have petitioned the U.S. Supreme Court to overrule a decision by the 9th Circuit Court of Appeals to block the district court's injunction. If granted, then the DADT policy would be immediately terminated.

The chances of their petition being granted is essentially zero, if for no other reason than the U.S. Military does not have the training programs in place to minimize disruptions while implementing the policy's cancellation. 4

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2010-NOV-11: Veterans' Day leak:

Information has leaked out about the Pentagon report that is to be officially released on DEC-01. It concludes that:

  • Most service members don't care if lesbians, bisexuals and gays serve openly.

  • Repealing the DADT policy will not cause overall harm to the military, but might cause temporary disruptions that can be mitigated with effective leadership.

  • There is no need for separate housing for lesbian, gay and bisexual service members.

  • The Marines and Army have the highest level of homophobia. 5

Aubrey Sarvis, the executive director of the Servicemembers Legal Defense Network, 6 a group blamed the leadership of the Marines and Army for the isolated opposition among their service members. She said:

"While the culture in those two branches may be somewhat different than the other services, before the surveys were even launched the leadership at the very top within the Marines and Army had biased the survey by expressing their hostile opposition to open service."

She was apparently referring to comments made by Gen. George W. Casey Jr., the chief of staff of the Army, and Gen. James T. Conway, who was the commandant of the Marine Corps at the time, expressing deep concern about moving rapidly to repeal DADT. The current leader of the Marines, Gen. James F. Amos, appears to have confirmed the fears of his predecessor when he told reporters that:

"There is nothing more intimate than young men [who are] laying out, sleeping alongside of one another and sharing death, fear and loss of brothers."

It is doubtful that the lack of harm to the military that would result from the repeal of DADT will motivate many Republicans to support the bill. An unidentified Senate Democratic leadership aide said: "I’m not sure it’s going to move very many, if any, Republican. It’s an ideological issue."

The report was issued on schedule on DEC-01. It confirmed the accuracy of the leaked information

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2010-NOV-12: Defense Department and U.S. Supreme Court developments:

The Defense Secretary, Robert M. Gates has, ordered an investigation to determined who leaked information on the DADT report. Pentagon Press Secretary Geoff Morrell released in a statement on NOV-12, stating that.

"The Secretary strongly condemns the unauthorized release of information related to this report. Secretary Gates is very concerned and extremely disappointed that unnamed sources within the Department of Defense have selectively revealed aspects of the draft findings...presumably to shape perceptions of the report prior to its release." 7

The U.S. Supreme Court issued a ruling that allows the Obama Administration to continue to enforce the DADT policy while the Justice Department appeals a lower court ruling. As is customary for the Court, they did not release any dissenting opinions or the actual vote of the justices.

R. Clarke Cooper, Executive Director of Log Cabin Republicans, said that they are "disappointed" but not surprised that the Supreme Court decided to maintain the status quo. He said:

"We are committed to pursuing every avenue in the fight against this failed and unconstitutional policy. Log Cabin will continue working to secure the votes needed for legislative repeal, and if necessary, we look forward to seeing President Obama’s attorneys in court next year to prove, once again, that ‘Don’t Ask, Don’t Tell’ doesn’t work." 8

Politico.com commented:

"The most interesting aspect of the Supreme Court’s action Friday may be the fact that the court’s newest member, Justice Elena Kagan, did not take part in it (to avoid the appearance of impartiality, [sic]) according to the order released by the clerk’s office. That means Kagan is likely to recuse herself if the Log Cabin case later reaches the Supreme Court as a full-fledged case." 8

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Subsequent activity

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Emergency motion under Circuit rule 27-3," Justice Department, at: http://www.politico.com/
  2. Raven Cloabough, "Top Marine Urges Military to Keep "Don't Ask, Don't Tell," New American, 2010-NOV-08, at: http://www.thenewamerican.com/
  3. "Appeals court delays injunction against 'don't ask, don't tell'," CNN, 2010-OCT-20, at: http://articles.cnn.com/
  4. Mark Thompson, " 'Don't Ask, Don't Tell' reaches high court," Time magazine, 2010-NOV-06, at: http://swampland.blogs.time.com/
  5. Elisabeht Bumiller, "Little harm found if gay ban is lifted," New York Times, 2010-NOV-11, at: http://www.nytimes.com/
  6. The Servicemembers Legal Defense Network's home page is at: http://www.sldn.org/
  7. "Pentegon investigates leak on gays in military," Washington Post, 2010-NOV-12, at: http://voices.washingtonpost.com/
  8. Josh Gerstein, "Supreme Court: 'Don't ask, don't tell' OK during appeal," Politico, 2010-NOV-12, at: http://www.politico.com/
  9. Andrew Harmon, "Govt. seeks to suspend DADT lawsuit appeal," The Advocate, 2010-DEC-30, at: http://www.advocate.com/

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Copyright © 2010 & 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2010-OCT-20
Latest update: 2011-JUL-12
Author: B.A. Robinson

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