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By Lisa Keen
“Don’t Ask, Don’t Tell” will be off the books Sept. 20, but some still worry that the removal of that specific law barring gays from the military will not stop discrimination. Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.
Congressional repeal of DADT is not enough to end discrimination against gays in the military, Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1.
Woods noted that, before DADT was passed in 1993, there was a military regulation – not a federal law – that banned “homosexuals” from the military.
“That ban had existed for decades,” Woods said.
And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods said, “the government will be completely unconstrained in its ability to again ban gay service in the military.”
Woods noted that, even since Congress passed the repeal last December, there is a new Congress now, the House has voted to de-fund implementation of repeal, and “multiple candidates for president (are) promising, as part of their campaign platforms, to repeal the repeal.”
One member of the panel, Judge Barry Silverman said the concern about presidential candidates seemed a bit “speculative.”
“Well, there’s an election next year,” responded Wood.
“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”
The situation is that the Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. That lawsuit – which won a powerful decision from U.S. District Court Judge Virginia Phillips September 2010 – was largely responsible for prompting Congress to finally pass a bill repealing DADT in December. Phillips had ordered the military to immediately stop enforcing DADT and military officials began warning Congress that it seemed inevitable the courts would strike down the law. The military wanted a smooth transition to a DADT-free force, and Congress agreed.
Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal. He said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.
Log Cabin’s attorney Woods said that, if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “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.”
Woods also noted that affirming Judge Phillips’ ruling 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.
The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits, but Woods argued 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.”
“If you vacate the judgment and take away the case,” added Woods, “the government is unconstrained and simply might do it again. History might repeat itself.”
For now, SLDN is trying to prepare gay active duty service members for the historic change that is about to take place Sept. 20. That’s the date on which a 60-day review period will have ticked away following certification of military readiness to implement repeal and, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.
“Many service members want to attend these celebrations, and some might want to speak at them,” notes the SLDN website, noting that “no special rules apply to attendance at or participation in such events.”
But SLDN did warn gay service members not to criticize their commanders – past or present – or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned service members not to wear their uniform to an event that is partisan in nature.
For more details on what’s allowed and disallowed for active duty service members in uniform, see http://www.sldn.org.