The Pentagon has officially issued a moratorium on “Don’t Ask Don’t Tell” (DADT) discharges following the 9th Circuit Court of Appeals ruling last week to uphold a lower court’s order to immediately halt all enforcement of the military’s DADT policy.
In a letter dated July 8, Under Secretary of Defense for Personnel & Readiness Clifford Stanley writes that the military service secretaries must comply with an injunction against enforcing military’s gay ban that was reinstated Wednesday by a three-judge panel on the U.S. Ninth Circuit Court of Appeals. The institution of this moratorium was first reported by the Army Times.
“The reinstatement of that injunction … is effective immediately,” Stanley writes. “The secretaries of the military departments shall ensure immediate compliance with the injunction and this memorandum.”
“It remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline,” Stanley writes. “Further, because the injunction is once again in effect, the department will process applications for enlistment or appointment without regard to sexual orientation.”
It should be noted the Obama administration could still appeal the 9th Circuit’s decision.
While it may seem that an appeal would run contrary to the President’s desire to see “Don’t Ask, Don’t Tell” retired it would be procedural matter with some merit. Given that DADT has now twice been ruled unconstitutional here, first by a federal district court judge and now by the 9th Circuit, it adds support to the notion that DADT must be repealed and also wards off attempts to stop the repeal by certain Republican lawmakers in Congress. Also, a ruling in the same vein from the Supreme Court of the United States would not only be a big win on the DADT front (perhaps even enjoining the military to enforce the explicit non-discrimination policy that is currently lacking in the repeal), but could constitute a boon for future gay rights cases.
That said, DADT repeal certification is said to be close at hand, which would rather render an appeal pointless other than to continue the status quo and follow the procedure as laid out by December’s repeal legislation that the policy will be retired sixty days after certification. This reason alone would likely be enough for the Supreme Court to dismiss the case. There is also an inherent risk of putting the question before the Supreme Court and having them rule against the repeal (which would be a boost to GOP lawmakers attempting to derailing the retiring of DADT).
The unease over how the Obama administration will handle this situation has not gone unvoiced.
Group Servicemembers United issued a press release urging the administration to clarify what it will now do:
Army Veteran and Servicemembers Legal Defense Network (SLDN) Executive Director Aubrey Sarvis released the following statement in response to the moratorium reported today by Army Times, indicating the Pentagon intends to halt all discharges under the “Don’t Ask, Don’t Tell” (DADT) law following this week’s ruling in the Ninth Circuit Court of Appeals.
“SLDN welcomes this temporary suspension of ‘Don’t Ask, Don’t Tell’ discharges in the wake of this week’s court decision, but we urge the Pentagon to go further by suspending all investigations of service members that are currently ongoing, and confirm that the Department of Defense and Department of Justice are not preparing to appeal the court’s ruling. It’s imperative for service members, gay and straight, who have been living with ambiguity for far too long as this process has languished unnecessarily. The time for clarity and finality is long overdue.”
Some positive news in this regards comes from reports that t least one servicemember has seen a halt to discharge proceedings against him.
Airman 1st Class Justin Dailey said Friday that he had been served with discharge paperwork on June 9 after his sexual orientation came to the attention of his command. Dailey, 25, said he did not make a voluntary statement on his sexual orientation and was not seeking separation from the Armed Forces.
Stationed at Eglin Air Force Base in Florida, Dailey said he was told on Thursday — one day after the ninth circuit’s order lifting the stay on U.S. district judge Virginia Phillips’s injunction against DADT — that his discharge proceedings had been suspended. “I had intended on fighting this tooth and nail,” Dailey said. “I’m happy I can proceed with my career and get back to work.”
Dailey’s account was confirmed by Servicemembers Legal Defense Network, which has represented the airman in collaboration with his military defense attorney. SLDN spokesman Zeke Stokes said that the military attorney had received notification via phone of Dailey’s discharge suspension but has not yet received specific written communication from Defense officials.
The latter point, that proceedings have halted but have not necessarily gone away, remains key. SLDN is urging LGB servicemembers to not yet come out until the Obama administration has made it clear that it will not appeal the 9th Circuit order and will now allow the repeal to go into effect.