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Religious Tolerance logo

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

Developments: 2010-DEC-19 to now: Court
of Appeals deals with the District Court ruling

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Prior activity

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2010-DEC-19: Justice Department request suspension of appeal after bill to repeal DADT is signed into law; :

The House passed the DADT repeal bill on 2010-DEC-15. The Senate passed it on DEC-18. President Obama signed it into law on DEC-22. It became effective on 2011-SEP-20.

According to an article in the Advocate magazine, 1 the Justice Department filed a request with the 9th Circuit Court of Appeals to suspend the appeal of Judge Phillip's ruling. They wrote that the "orderly" process to elimintate the DADT policy that was created by the law signed on DEC-22 would make the appeal of the Log Cabin Republicans (LCR) lawsuit unnecessary.

Dan Woods, the lead attorney for the LCR said that he would not agree to suspend the lawsuit as long as the DADT policy remains in effect. He said: "Unless the government agrees not to discharge any more service members, our lawsuit is alive and kicking."

The appeal was granted; Judge Phillips' injunction was suspended.

The Log Cabin Republicans who filed the original suit in District Court then appealed the decision of the 9th Circuit Court of Appeals to suspend the injunction of the lower court.

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2011-JUL-06: Three-judge panel of 9th Circuit Court of Appeals restores lower court's injunction:

A three judge panel of the 9th Circuit Court of Appeals reviewed the suspension of the District Court's injunction. They determined since the government had completed much of the process of repealing the DADT policy, that the government: "can no longer satisfy the demanding standard" to keep the injunction on hold. They ordered an immediate end to the clearly unconstitutional DADT policy.

With the lower court's injunction now restored, the Pentagon announced that it would comply with the court order. Colonel Dave Lapan, spokesperson for the Pentagon, said the U.S. military was immediately taking "... steps to inform the field of this order." The moratorium was announced on JUL-08.

Pentagon spokesperson Eileen Lainez said that troops are currently undergoing training programs to clarify the law and ensure a smooth transition to its repeal. Most of that training is expected to be completed by this summer, yet there is no requirement that 100 percent of the force must be trained prior to repeal."

The Army Times reported that the Pentagon "... will begin accepting applications from prospective recruits who identify themselves as homosexuals." 2

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Reuter's News Aagency reported:

"R. Clarke Cooper, executive director of the Log Cabin Republicans which filed the suit said the ruling 'removes all uncertainty - American service members are no longer under threat of discharge as the repeal implementation process goes forward'."

"Since the ban became a formal policy in 1993, an estimated 13,000 people have been expelled from the armed forces for violating the rules." 3

During 2010-OCT, the Pentagon started to require civilian service secretaries and the Pentagon’s top lawyer to approve any separation of LGBT service members from the military. 2 Only one service member has been involuntarily discharged under the DADT policy since the bill to set up a repeal process was signed into law during 2010. However, three members of the Air Force have voluntarily requested that they be discharged under the policy. 4

Lesbian, gay and bisexual service members were then in an unsafe situation should they decide to come out of the closet. During the fall of 2010, they could not be discharged under the DADT policy. However, if

  • The full Court of Appeals rules that the policy is constitutional, or
  • If the Obama Administration or Pentagon appeals the case to the U.S. Supreme Court, or
  • If a Republican president is elected in 2012 and his administration decides to appeal the case to the Supreme Court, or
  • If the GOP achieves control of the presidency, House and Senate in the 2012 elections or any subsequent election day, then

the DADT policy could be restored at some time in the future. Service members who have come out of the closet in the meantime could find themselves discharged. Some felt that it was safer for them to stay in the closet until the whole matter was settled.

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2011-JUL-14: Government files an emergency request to reinstate DADT:

According to the Associate Press:

"The Department of Justice filed an emergency motion Thursday [2011-JUL-14] asking the court [of appeals] to reconsider its order, saying ending the ban now would pre-empt the 'orderly process' for rolling back the policy as outlined in the law passed and signed by the president in December.

Late Friday the court temporarily reinstated it, while prohibiting any investigation, penalties or discharges under the rule. The Pentagon said the ban could be lifted within weeks."5,6

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Review of the story up until now:

  • DADT starts: In 1993, the Don't Ask Don't Tell policy was passed by congress and signed by a Democratic president, Bill Clinton.
  • DADT continues: In 2010-DEC, Congress passed a law to create a process that might phase out DADT, if it can be done without disrupting the military.
  • DADT continues: The Log Cabin Republicans, a pro-LGBT equality group, launched a lawsuit in federal District Court charging that DADT is unconsitutional. They won.
  • DADT stops: Judge Virginia Phillips issued a worldwide injunction preventing DADT from being enforced.
  • DADT restarts: The Department of Justice appealed the case to the 9th Circuit Court of Appeals who suspended the injunction pending its own review of the case. DADT was enforced once more.
  • DADT stops: A three judge panel of the Court of Appeals confirmed the lower court ruling, and reinstated the injunction. DADT was dead in the water.
  • DADT restarts, but cannot be applied: The Department of Justice filed an emergency motion to the Court of Appeals asking that DADT be reinstated. The Court of Appeals suspended the injunction against DADT. DADT was once more reinstated, but the military may not investigate, assign penalties, or discharge service members who are suspected of having a homosexual or bisexual orientation.

And so, the status of DADT as of mid-2011 was that the military's DADT policy remained in place, but the military could not use it to oppress or discharge lesbian, gay or bisexual service members. The law remained on the books. But it was not really on the books because it couldn't be acted upon.

The Canadian process to allow openly gay service members was much neater. One memo was sent out from the Canadian equivalent of the Pentagon, and the job was finished. Lesbians, gays and bisexuals could serve and continue serve.

Finally, the new law became active on 2011-SEP-20 at 12:01 AM local time. LGB service members can freely serve. However, the government could repeal the repeal law at any time in the future, and reinstate DADT. If the Republican Party gains control of the federal government in the future, DADT would almost certainly be restarted, even if it is opposed by a strong majority of the voters.

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2011-SEP-01: Log Cabin Republicans (LCR) continue appeal before the federal Court of Appeals:

Daniel Woods, the lawyer for the Log Cabin Republicans, argued before a three-judge panel of the 9th Circuit Court of Appeals, asking them to uphold the earlier decision by federal district court that found DADT unconstitutional. He noted that prior to 1993, a military regulation banned homosexuals from the military; it had existed for decades. He said that if the panel does not affirm the lower court decision, that the federal "... government will be completely unconstrained in its ability to again ban gay service in the military."

He noted that in the 8 months since the repeal law was passed in 2010-DEC, there had been a vote in the House to de-fund the military's implementation of the repeal. He also mentioned that there are:

"... multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal. ... The point I’m trying to make is that the government has no constraints on it if this case is determined to be moot and the judgment is vacated, as counsel for the government argues. Then we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional. This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again." 7

Lisa Keen of Keen News Service wrote:

"Woods urged the panel to affirm Judge Phillips’ decision, saying it would remedy 'collateral consequences' caused by DADT. Among those concerns, he said, were loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

Whitaker [attorney for the U.S. Department of Justice,] said individuals discharged under DADT could seek these remedies through individual lawsuits, but Woods urged the panel that it, '... ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.'

Whitaker [sic] contended the decision in Log Cabin v. U.S. is needed necessary [sic] to rectify the discharges of servicemembers kicked out under DADT.

'We’ve made clear that [DADT] discharge codes will not be respected once repeal becomes effective,' said Whitaker. 'And even today, your honor, the Department of Defense is accepting and processing applications by gay and lesbian individuals to serve in the armed forces, including by gay and lesbian individuals who were previously discharged under Don’t Ask Don’t Tell'." 7

The judges did not seem to be sympathetic to Wood's request.

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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. Andrew Harmon, "Govt. seeks to suspend DADT lawsit appeal," The Advocate, 2010-DEC-30, at:
  2. Andrew Tilghman, "Pentagon suspends DADT in wakr of court ruling," Army Times, 2011-JUL-08, at:
  3. Jeremy Pelofsky and Dan Levine, "Court orders gay military service ban lifted," Reuters, 3011-JUL-06, at:
  4. Liz Goodwin, "Army to suspend DADT discharges, accept gay recruits," Yahoo News, 2011-JUL-08, at:
  5. Michelle Garcia, "Govt. Files Emergency Reversal of DADT Order." The Advocate, 2011-JUL-14, at:
  6. Julie Watson, "Troops marchin San Diego's gay pride parade," Associated Press, 2011-JUL-16, at:
  7. Lisa Keen, " 'History could repeat itself' on DADT, warns Log Cabin attorney," Keen News Service,  2011-SEP-05, at:

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Home > "Hot" topics > Homosexuality & Bisexuality > Challenges > DADT > Lawsuit > here

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Copyright © 2010 & 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2010-OCT-20
Latest update: 2011-SEP-26
Author: B.A. Robinson

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