Under the U.S. Supreme Court: 'Don't ask, don't tell' just keeps rolling along

By MICHAEL KIRKLAND  |  Jan. 9, 2011 at 3:30 AM
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WASHINGTON, Jan. 5 (UPI) -- Congress may have enacted and President Barack Obama may have signed the repeal of the "don't ask, don't tell" policy on gays in the military, but the policy is still thrashing around the legal waters like a lobster that can't quite back out of a trap.

Meanwhile, the policy is being enforced in the services as the administration and the Pentagon try to take it slow on repeal.

"Don't ask, don't tell" allows gays to serve in the military as long as they do so covertly. If they openly declare their homosexual orientation, they can be discharged -- though for now the discharge has to be approved first by senior service officials, not commanding officers.

One conservative group that acts as an advocate for gay rights, the Log Cabin Republicans, filed an initially successful constitutional challenge to "don't ask, don't tell" in federal court in San Francisco in 2004. But the group had praise for Obama and the administration with the repeal's enactment.

Obama signed the legislation repealing the policy Dec. 22, saying, "We are not a nation that says 'don't ask, don't tell,' we are a nation that says 'out of many, one.' We are a nation that believes all men and women are created equal."

The president told military gays and lesbians, "As the first generation to serve openly, you will stand for all of those who came before you and you will serve as role models" for those who follow.

But Obama's signing ceremony didn't mean the repeal would be implemented immediately, only that the lengthy process of repealing the policy would begin.

The Log Cabin Republicans immediately issued a statement praising the repeal but vowing to continue its lawsuit against the ongoing policy. SCOTUSBLOG.com reported last week on the twists and turns on the policy, which for the moment refuses to die.

Log Cabin Republican Executive Director R. Clarke Cooper, a combat veteran and an Army Reserve captain, attended the signing ceremony. He issued a statement saying, "It was an honor to witness the culmination of decades of work by service members, their friends and allies in the fight for open service." He noted Republican support for the legislation, but added, "As long as service members still face the threat of discharge, Log Cabin Republicans will continue our fight in court to protect the fundamental constitutional rights of our men and women in uniform. President Obama today promised that implementation would move 'swiftly,' and Log Cabin plans to hold him to that promise."

The next day, U.S. Defense Secretary Robert Gates told gays and lesbians in uniform they should comply with the "don't ask, don't tell" law while it's still in effect, suggesting the implementation of the repeal may take some time. So far, no one has said how much time.

By last Monday, Log Cabin Republicans had issued a new statement headlined "Obama Department of Justice Up to Old Tricks in New Year."

The group was responding to a Justice Department filing in the 9th U.S. Court of Appeals asking the appeals court to delay hearing the government appeal of the Log Cabin Republican constitutional challenge indefinitely. In addition, the group said, the Pentagon was still enforcing the policy and the Justice Department was still defending it.

"Passage of the 'Don't Ask, Don't Tell' Repeal Act of 2010 was an important step toward open service, but until open service is a reality, our legal battle remains necessary," Cooper said in a new statement.

The lead attorney for the group in the challenge, Log Cabin Republicans vs. USA, said despite the assurances from Obama and the White House for a quick implementation, "the Department of Justice has continued to throw up roadblocks."

Log Cabin attorney Dan Woods added: "I reached out to my counterparts at the Department of Justice and offered to accept a stay (in the appeal) if the government would agree to immediately end all discharges under 'don't ask, don't tell.' The Obama administration refused, and insists on continuing its enforcement of a policy that has been rejected by Congress, the military and the American people. We are left with no choice but to continue our challenge to this failed and unconstitutional policy."

Besides the delay in the repeal's implementation, what has focused the ire of the Log Cabin Republicans is a motion filed in the appeals court late last month by the Justice Department asking for a delay of 90 days in the case.

The motion asks the appeals court "to suspend the briefing schedule and to hold these appeals in abeyance in light of the enactment of the Don't Ask, Don't Tell Repeal Act of 2010."

Lyle Denniston, Supreme Court press room dean emeritus, reports on SCOTUSBLOG.com the government's brief is due at the appeals court Jan. 24, the Log Cabin Republicans response brief by Feb. 22, and the government's reply by March 8 -- unless the delay is granted and the briefing scheduled is suspended.

The government's filing points out, "Section 2(f) of the Repeal Act provides that ... the repeal 'shall take effect 60 days after the date' on which the president transmits to Congress a certification by the president, the secretary of defense and the chairman of the Joint Chiefs of Staff that a number of requirements have been met. In light of this newly enacted legislation, suspension of the briefing schedule in this case and an order holding the appeals in abeyance is appropriate pending the certification process and effective date of the statute. If the court grants this relief, the government will advise the court within 90 days as to the status of the certification process set forth in the Repeal Act."

In other words, implementation of the repeal probably won't be in place in 90 days, but the Justice Department is promising to tell the appeals court by then what progress has been made.

In the suit brought by the Long Cabin Republicans -- which claims the "don't ask, don't tell" policy is facially invalid because the regulations violate the First Amendment, due process and equal protection guarantees of the U.S. Constitution -- a federal judge held that the policy is unconstitutional and issued a "permanent worldwide injunction" against its enforcement.

While Gates issued orders that no service member should be discharged without the approval of the secretary of the service involved, the government asked for a stay of the injunction and filed an appeal.

A 9th Circuit appeals court panel granted the stay by a vote of 2-1, citing the government's contention that immediately giving the injunction worldwide effect would "seriously disrupt ongoing and determined efforts by the administration to devise an orderly change of policy," the contention successfully changing the policy "will require ... the preparation of orderly policies and regulations to make the transition" and "a precipitous implementation of the district court's ruling will result in 'immediate harm' and 'irreparable injury' to the military."

The panel said it "relied upon the government's determination that 'a successful and orderly change ... will not only require new policies, but proper training and the guidance of those affected by the change."

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