The 9th Circuit Court of Appeals on Friday answered the Obama administration’s plea that the military’s gay ban be allowed to remain in effect by once again lifting the world-wide injunction halting enforcement, but did so with one stipulation: the military still cannot investigate or discharge soldiers under the “Don’t Ask, Don’t Tell” (DADT) rule.
The order means that while the military can still refuse to allow the enlistment of potential soldiers who are known to be gay or lesbian, the army cannot continue with separation proceedings against those already within the ranks.
“[T]he stay entered November 1, 2010, is reinstated temporarily in all respects except one,” the order states. “The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”
The decision comes from a three-judge panel within the Ninth Circuit made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez.
An injunction barring the Pentagon from discharging service members under “Don’t Ask, Don’t Tell” means prohibiting open gays from enlisting in the armed forces is the only part of the law remaining in effect.
This comes after the Obama administration was forced to clarify last week that, while the administration thinks the DADT rule unfair, they do believe DADT to be constitutional.
The Obama administration’s emergency request to overturn the world-wide injunction halting DADT enforcement spelled out that the repeal process is nearing completion and said that court intervention at this time would mean a risk of damaging Congress’ agreed upon time-frame and the military’s autonomy.
The continual back and forth on DADT seems to be taking its toll however, with a military insider telling the Advocate that there is some confusion within the ranks on whether the DADT rule remains in force:
Others say communication on the status of DADT has been insufficient, despite a Pentagon memo issued last week confirming that officials would comply with the court’s order. “Surprisingly, we’ve heard nothing in the field, nothing from our chain-of-command,” said Lt. Col. Victor Fehrenbach, who reached an agreement last August with the Air Force preventing his discharge under DADT (Fehrenbach retires in September with full rank). “We have received zero official word for any official source, not even my squadron commander. Everyone seems confused. Is DADT in effect or isn’t it? Even the chain-of-command doesn’t seem to know.”
With oral arguments in the next stage of the Log Cabin Republican suit against DADT expected to be heard by the 9th Circuit on September 1, it would seem the situation is unlikely to get any clearer in the near term until certification of the repeal is achieved and the sixty day waiting period thereafter is up.
This kind of situation, with the military embroiled in a contentious and legally complicated lawsuit, is exactly what President Obama seemed to want to avoid by strongly advocating for a legislative repeal. The Log Cabin Republicans point out that without explicit nondiscrimination protections their suit is still necessary, especially while the administration still holds that DADT is constitutional.