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'Don't ask, don't tell' enforcement should end, appellate panel rules

The decision is a turnaround for the 9th Circuit. The shift is attributed to Justice Department and White House calls for 'heightened scrutiny' of laws that discriminate based on sexual orientation.

July 07, 2011|By Carol J. Williams, Los Angeles Times
  • Col. Rudolph Janiczek briefs Marines at Camp Pendleton in May about changes to the "don't ask, don't tell" policy.
Col. Rudolph Janiczek briefs Marines at Camp Pendleton in May about changes… (Bob Chamberlin, Los Angeles…)

A federal law banning openly gay people from serving in the military should no longer be enforced, a federal appeals court ruled Wednesday, citing the Obama administration's call for an end to "a history of discrimination" against homosexuals.

The "don't ask, don't tell" policy signed into law by President Clinton in 1993 was ruled unconstitutional in September by U.S. District Judge Virginia Phillips in Riverside. A month later, Phillips issued a "worldwide injunction" against further discharges of gay soldiers and sailors, but the U.S. 9th Circuit Court of Appeals in November suspended her order while the case was being appealed.

Congress, in the meantime, repealed "don't ask, don't tell" but left the policy in force until the president, the Defense secretary and the Joint Chiefs of Staff certify that enough training and preparation for integrating gays has been accomplished to avoid any damage to military readiness. The training is expected to be completed by mid-summer.

On Wednesday, a three-judge panel of the 9th Circuit said the "balance of hardships," which had previously justified a stay of Phillips' order, had changed.

Gay rights groups applauded the 9th Circuit action, while opponents of gays in the military called the decision a capitulation to an administration that is "letting down the troops."

The 9th Circuit's turnaround was attributed to recent statements by the Justice Department and the White House calling for "heightened scrutiny" of laws that discriminate on the basis of sexual orientation, like the Defense of Marriage Act, which deprives same-sex married couples of federal benefits.

"Gay and lesbian individuals have suffered a long and significant history of purposeful discrimination," the administration said last week in ordering equal treatment of the spouse of a lesbian lawyer who works for the 9th Circuit.

Atty. Gen. Eric H. Holder Jr.'s February letter to Congress saying that the Justice Department would no longer go to court to protect the Defense of Marriage Act against lawsuits was also referred to by the 9th Circuit panel, which consisted of Chief Judge Alex Kozinski, appointed by President Reagan, and two appointees of President Clinton, Judges Kim McLane Wardlaw and Richard A. Paez.

The panel lifted the stay it imposed in November in a two-page order granting a motion brought by the Log Cabin Republicans, a gay rights advocacy group that sued the federal government over "don't ask, don't tell" seven years ago.

R. Clarke Cooper, a combat veteran and reservist who is executive director of the Log Cabin Republicans, said that the Defense Department had been making good-faith progress in preparing for the termination of "don't ask, don't tell," but that the 9th Circuit action "ensures there will be no walking back on the legislative side."

The National Gay and Lesbian Task Force hailed the 9th Circuit action, saying polls show that 80% of Americans want an end to the "don't ask, don't tell" policy that has forced the discharge of thousands.

"They know it's wrong and nonsensical to discriminate against patriotic people willing to risk their lives by serving in the military," said the advocacy group's executive director, Rea Carey. "They know it's unfair that qualified service members have been drummed out of the military because of bias. It is a mark of shame that this policy remains in place."

Although the Defense Department wasn't expected to appeal the 9th Circuit decision, the Pentagon's legal challenge to Phillips' order remains active. The 9th Circuit set an Aug. 29 date to hear arguments, but the matter could be dropped by then.

Elaine Donnelly, president of the Michigan-based Center for Military Readiness that advocates for "sound military personnel policies," said the Obama administration was overstepping its authority in unilaterally declaring laws defining rights on the basis of sexual orientation as unconstitutional.

"To say anything involving the phrase 'sexual orientation' becomes a special case with special rights, that is a step way too far," said Donnelly, whose organization has been endorsed by more than 1,100 retired military officers.

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