LOS ANGELES (BP)–The military’s Don’t Ask, Don’t Tell policy on open homosexuality apparently was already on its way out, but it may have ended earlier than expected when a panel for the U.S. Ninth Circuit Court of Appeals ordered the policy be halted immediately July 6.
The three-judge panel for the Ninth Circuit lifted a stay from Nov. 1 that had prevented a lower court’s ruling overturning the policy from going into effect. But with the stay lifted, that earlier controversial ruling by Judge Virginia Phillips is now in effect.
Unless the Obama administration appeals the ruling and either the full Ninth Circuit or the U.S. Supreme Court puts the stay back in place, the Don’t Ask, Don’t Tell policy officially is history.
Under a law that President Obama signed last December, the policy would end, but only after the Pentagon prepares and trains military personnel and only after Obama, the secretary of defense and the chairman of the joint chiefs of staff certify that it will not harm the military. Although certification was a foregone conclusion — because all three men oppose the policy — it had yet to take place.
The three-judge panel, comprised of two Clinton nominees and one Reagan nominee, argued that because the process of repealing Don’t Ask Don’t Tell is “well underway” and because “the preponderance” of the military is “expected to have been trained by mid-summer,” the government “can no longer satisfy the demanding standard for issuance of a stay.” The Obama Justice Department had urged the court to keep the stay in place while training continues.
The panel noted that the Justice Department’s own brief in a separate case concerning the Defense of Marriage Act had argued that “gay and lesbian individuals have suffered a long and significant history of purposeful discrimination.”
It is not known whether the Justice Department will appeal. A spokesman told several media outlets that the department is reviewing the case.
Conservative groups called on the administration to file an appeal.
“Unfortunately, [the July 6] ruling further complicates an already flawed implementation process,” Family Research Council President Tony Perkins said in a statement. “We urge President Obama to appeal this ruling immediately and for the U.S. Supreme Court to intervene and return the decision to where it belongs. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them,” Perkins stated.
In June, U.S. Rep. Duncan Hunter, R.-Calif., and 31 other members of the House asked Obama to delay certification “until Congress has had sufficient time to review” concerns it has with repeal. Among those are “specific applications of the pending repeal” — such as the military’s interaction with the Defense of Marriage Act. The letter mentioned the Navy’s authorization in May of “gay marriage” ceremonies on bases located in states where such unions are legal. The Navy, under pressure, suspended the authorization “pending additional legal and policy review.”
The issues of marriage and religious liberty are critical to supporters of Don’t Ask, Don’t Tell. Last year, more than 60 retired chaplains signed a letter to Obama and then-Secretary of Defense Robert Gates warning that a repeal would marginalize “deeply held” religious beliefs of military personnel and present a conflict when some chaplains, while preaching, “present religious teachings that identify homosexual behavior as immoral.” They warned that changing the policy could influence chaplains not only in what they could preach but in what they could say in a counseling session. A repeal, the letter further said, would harm morale because it would be casting “the sincerely held religious beliefs of many chaplains and Service members as rank bigotry comparable to racism.”
The case is Log Cabin Republicans v. U.S.
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Michael Foust is associate editor of Baptist Press.
