By Rex Wockner
The Supremes are keeping Don't Ask, Don't Tell in force.
The U.S. Supreme Court on Nov. 12 refused to vacate an order from the 9th U.S. Circuit Court of Appeals that suspended an injunction from the federal District Court in Riverside, Calif., that prohibited the U.S. government from enforcing the Don't Ask, Don't Tell military gay ban.
Which means: DADT can be enforced during appeal of the Riverside decision that found it unconstitutional – unless President Barack Obama, Congress and the Pentagon end the ban in the interim.
Plaintiff Log Cabin Republicans had asked the Supreme Court to vacate the 9th Circuit order, thereby allowing Riverside Judge Virginia Phillips' injunction to go back into force. Supreme Court Justice Anthony Kennedy, who hears such requests from the 9th Circuit, referred the matter to the full Supreme Court, where Justice Elena Kagan opted not to take part in the decision.
Phillips issued her injunction Oct. 12 after finding that DADT violates the U.S. Constitution's guarantees of free speech, due process and right to petition for redress of grievances.
The injunction remained in place until Oct. 20, when the 9th Circuit issued a brief stay while it decided whether to issue a longer stay, which it did Nov. 1.
During the eight days the injunction was in force, the military stopped kicking gays and lesbians out of the services and began letting them re-enlist.
The Obama administration's insistence on appealing Phillips' DADT strikedown has been highly irritating to gay activists, given that the president says he strongly opposes DADT. Obama, however, says the policy needs to be ended by Congress, which created it, not the courts.
The administration also has argued that the Justice Department has an obligation to defend federal laws that are challenged, and that DADT should not be ended abruptly because that will disrupt and harm military operations.
The Pentagon recently conducted a massive survey of members of the military to help it decide how to end DADT. Leaked versions of the findings, which will be released officially in December, reportedly reveal that most members of the armed forces are fine with GLB people serving openly.
The U.S. House of Representatives passed a measure this year authorizing the military to end DADT but the Senate did not follow suit after Sen. John McCain, R-Ariz., staged a filibuster over the matter.
"It is unfortunate that an unconstitutional law that is causing substantial harm to military readiness and to tens of thousands of troops is allowed to remain in effect for even one more day," said Alexander Nicholson, executive director of Servicemembers United.
"This just underscores the need to continue to put pressure on Senate Majority Leader Harry Reid to allow the defense authorization bill (which includes DADT repeal language) to come back up and take its first procedural step before the Senate's Thanksgiving recess," Nicholson said. "Servicemembers United, Servicemembers Legal Defense Network, Stonewall Democrats, and the Log Cabin Republicans have all strongly and consistently called on Sen. Reid to do just that. It is now time for other organizations, as well as the White House, to publicly do the same."
The National Gay and Lesbian Task Force urged supporters to call the Capitol switchboard at 202-224-3121 and tell both of their U.S. senators to authorize repeal of DADT by voting for the defense-authorization bill this month.
"We can only be assured of having the 60 votes we need if we can change minds before the new members of the Senate take their seats," the group said.
But LCR attorney Dan Woods thinks that ship has all but sunk.
"With the likelihood of Congress repealing Don't Ask, Don't Tell fading with each passing day, judicial relief continues to be perhaps the most viable avenue for ending this unconstitutional policy," Woods said. "We and Log Cabin Republicans will continue to fight on to protect the constitutional rights of all Americans who want to serve in our military without regard to their sexual orientation. Our next step will be to ask the 9th Circuit to expedite the government's appeal from Judge Phillips' judgment and injunction."
LCR Executive Director R. Clarke Cooper commented: "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."
