U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military Tuesday, Oct. 12, to immediately stop enforcing the controversial “don’t ask, don’t tell” policy, putting a halt to the 17-year-old law. The injunction requires the government “immediately suspend and discontinue any investigation, or discharge” of service members based on their sexual orientation.
Phillips ruled the 1993 law unconstitutional last month saying it violates service members’ personal lives and freedom of expression and reduces military effectiveness by excluding qualified personnel. She rejected the Obama administration’s request to wait until Congress can act on the issue. The ruling applies to all U.S. military forces worldwide.
The ruling poses a political pickle for the Obama administration and Democrats in Congress that favor repealing the law. The House voted to repeal the law in May, but a Republican-led filibuster blocked a Senate vote last month. Legal experts note the Justice Department is generally obligated to defend laws passed by Congress and the recent ruling would now put the Obama administration in the position of defending a law it opposes.
Human Rights Campaign President Joe Solmonese in a statement said the Obama administration should comply with Phillips’ ruling and “stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence.” He added, “The President has said the law harms our national security and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination.”
The Log Cabin Republicans, a group that supports gay rights, led the suit and is advising caution by service members considering coming out because a higher court could reinstate the law. If the law is reinstated gays and lesbians could be discharged based on disclosures they made while the law was suspended, they note.
Since 1993, the military has discharged more than 14,000 people under “don’t ask, don’t tell,” which bans the military from asking about service members’ sexual orientation, but requires the discharge of those who say they are gay.
Christian Berle, executive director of the Log Cabin Republicans, hailed the injunction saying it would make the armed forces stronger. “Lifting the ban on open service will allow our armed forces to recruit the best and brightest and not have their hands tied because of an individual’s sexual orientation,” he said on Sify.com news.
Meanwhile Congress is now in recess until after the midterm elections. Senate Majority Leader Harry Reid, D-Nev., who favors repealing “don’t ask,” has said he wants to bring the issue up during the lame-duck session of Congress after the elections.
Others note waiting for a legislative repeal could be quite difficult during the next congressional term especially with Republicans aimed at making major gains in the upcoming elections.
The Pentagon, supported by the Obama administration, is conducting an internal review due in December focused on repealing the policy. Defense Secretary Robert Gates and Adm. Michael Mullen, chair of the Joint Chiefs of Staff, support ending the measure. The military resisted earlier attempts by Democrats in Congress to pass a temporary moratorium on discharges while a repeal is pending, however.
Gay and lesbian rights supporters say the policy must end now. They add President Obama can permanently end “don’t ask” by simply ordering the Department of Justice not to appeal. The policy is harmful to the military and undermines improving unit cohesion by encouraging gay and lesbian service members to be dishonest, they note.
Dan Woods, lawyer for the Log Cabin Republicans, said he plans to fight any request to block the judge’s order.
“We have patriotic members of our armed forces who happen to be homosexuals, who are fighting and dying for our constitutional rights, while the government is depriving them of theirs,” he said to the San Francisco Chronicle.
In a separate gay-rights case, the Justice Department said it would appeal a ruling in July by a federal judge in Boston that overturned the Defense of Marriage Act, a 1996 federal law that defines marriage as between a man and a woman. It also denies Social Security and other federal benefits to same-sex couples. The judge said it infringes on the state’s right to define marriage and on citizens’ due process rights.
In both cases the Obama administration has said repealing the measures should be left to Congress, not the courts.