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Court Puts DADT Back In Force, But With Little Bite

Court Puts DADT Back In Force, But With Little Bite

 

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.

From The Washington Blade:

“[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.

Related Reading:
Court Asks: Will Obama Drop DADT Defense?
Lesbian’s Exclusion from Jury Duty Raises Legal Scrutiny Question
Pentagon Issues Moratorium on DADT Discharges

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Photo used under the Creative Commons Attribution License, with thanks to the U.S. Army Photostream.

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20 comments

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1:14AM PDT on May 6, 2013

Thanks.

8:40AM PDT on Sep 2, 2011

ty

1:16PM PDT on Jul 20, 2011

What a wimp! I am so tired of Obama woosing out! I voted for the jerk - and each day I find another reason to regret it!

1:44PM PDT on Jul 19, 2011

Linda C - to be clear, Obama didn't say the ban should be left in place; that was a court decision. President Obama has no place in any judicial decision as he is part of the Administrative branch of the government. Congress also did not leave the ban in place - although some members ARE in favor of not letting gay soldiers serve openly. All President Obama did was say that the ban itself was not unconstitutional.
It is amazing to me the number of people who would ask someone to put their life on the line for their freedoms & security but then refuse to give them benefits because they are gay. It is OK to die for your country as long as we don't know you are gay? Whom someone has sex with has nothing to do with how they perform. They are just as likely to screw up as the heterosexual guy is.
DADT needs to go the way of the dodo bird. Gay people are human beings first, male or female next. Their talents & skills have diddly to do with whom they are attracted to. If they can fire a gun with accuracy, that does not change because someone finds out they are gay. If they are a surgeon, that skill doesn't dissipate because they love someone of the same sex. Just as in heterosexual marriage, sex is only a small part of what makes it work. Some people, gasp, get married because they love each other - not because they want to have sex - or even want children.

12:04PM PDT on Jul 19, 2011

DADT is going away. President Obama did put an end to DADT, it is going through the painful processes of finalization.

Did some of you read the article. The military, "still cannot investigate or discharge soldiers under the “Don’t Ask, Don’t Tell” (DADT) rule."

The Log Cabin Republicans maybe gay but they are still Republicans. I don't trust them anymore than any other Republican.

11:18AM PDT on Jul 19, 2011

But Elizabeth K, why do you feel that this should be dumped on the Republicans? It is the Democratic President, Obama, that has asked that this ban be left in place. For those of you that feel frustration, that is not unwarranted, but let's put the blame on the right person.

11:10AM PDT on Jul 19, 2011

THIS IS RIDICULOUS!!!!!! Can we please get rid of that damn DADT once and for all. This is getting to be really, really stupid!

10:56AM PDT on Jul 19, 2011

If DADT is not ended correctly, the repubs will just vote it in again if they can. There has to be a certain constitutional structure.

10:24AM PDT on Jul 19, 2011

Enough is enough. Get rid of this junk legislation!

10:13AM PDT on Jul 19, 2011

It may be a confussing time but worth the wait for a real end to the DADT policy.

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