United States federal 9th Circuit Appeals court has now ruled that the Pentagon can legally, temporarily reinstate a ban on allowing openly gay men and women in the U.S. military while a challenge to repeal of the “Don’t Ask, Don’t Tell” government policy wends its way through the courts. Gays in the military can’t quite be gay—yet.
The new October 20 court ruling and temporary ban on forced institution of the “Don’t Ask, Don’t Tell” rule has been issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco. Today’s temporary ban creates yet more chaos in the landmark legal battle, with ruling last week, which has been forcing U.S. military branches to welcome openly gay recruits for the very first time.
The Appeals Court told attorneys for the gay rights group that initiated the lawsuit, challenging “Don’t Ask, Don’t Tell”, that legal arguments need to be received by the forthcoming Monday.
The “Don’t Ask, Don’t Tell” government rule, created nearly two decades ago in 1993, allows gay men and women to serve in the military, but only if gays maintain their sexual orientation secret.
The government says it had wanted the 9th Circuit Court of Appeals to take action the same day as a federal judge’s overturn of the U.S. military's "Don't ask, Don't tell" policy. It didn’t work out quite that way—but, apparently, in a close enough timeframe to cause havoc.
The Obama Presidential administration is in favor of repealing the “Don’t Ask, Don’t Tell” law—but the government and Pentagon have been fighting repeal of the rule. The U.S. military and Pentagon claim that following last week’s ruling by U.S. District Judge Virginia Phillips, in immediacy, would create a major problem for the military—despite any such evidence supporting its argument.
The Pentagon has proposed the idea that gay men and women--including men on the front lines--will suddenly have lost the ability to “fight”, should troops be aware of their sexual orientation. The idea seems to be that, despite the fact that such men and women were able to fight previously, when no one knew they were gay, once that “gayness” is no longer secret, fighting will be out of the question.
The Justice Department claims that leaving the judge's decision for repeal of “Don’t Ask, Don’t Tell” in place now "would create tremendous uncertainty about the status of [U.S. military] service members who may reveal their sexual orientation in reliance on the district court's decision and injunction” and that "effectively developing proper [military] training and guidance with respect to a change in [military] policy will take time and effort," the court filing claims. "The district court's injunction does not permit sufficient time for such training to occur, especially for commanders and servicemembers serving in active combat."
President Barack Obama says he supports repeal of the “Don’t Ask, Don’t Tell” military rule, after careful review and an act of United States Congress. The government and Pentagon’s response is now to drag its feet in the rule’s repeal: the U.S. military proposes a yearlong “study”: with that extra year, the U.S. can supposedly study how to repeal the previously-instituted "Don't Ask, Don't Tell" policy without supposedly hurting the United States’ military’s ability to fight.
Legal representation for the Log Cabin Republicans says it is disappointed with the 9th Circuit Appeals court action and temporary ban but says: "We view the decision as nothing more than a minor setback," says representative Woods. "We didn't come this far to quit now, and we expect that once the Ninth Circuit [Court of Appeals] has received and considered full briefing on the [U.S.] government's application for a stay, it [the Court of Appeals] will deny that application.”
Log Cabin Republicans in court dismissed the government's legal argument, saying the Pentagon "has already acted nimbly" in response to the injunction in its order to military recruiters to accept gay and lesbian military applicants.
"The fact that the [U.S.] government can and did issue such instructions [to accept gay male and female military applicants], and comply with the injunction immediately, shows that the [United States] military will not sustain irreparable harm from compliance [with repeal of the “Don’t Ask, Don’t Tell” rule] and belies the need for any temporary stay," Log Cabin Republicans argued in court.
Aaron Belkin of University of California Santa Barbara (UCSB), says the U.S. government's legal arguments continue to ring hollow, as he previously told the The Washington Post. Argues Belkin: "The whole point of the ongoing Pentagon study is how to repeal “Don’t Ask, Don’t Tell” --as if we [the U.S. government and its military servicemen and women] don't know how to do it. But look what happened last week [after the policy’s repeal]. The military suspended it [“Don’t Ask, Don’t Tell”] last week, with no training, and guess what? Nothing happened. You don't need to teach the [U.S. military] troops how to interact with gays anymore than you need to train them how to deal with Jews," Belkin says. "People know how to behave with one another."