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October 22, 2010

‘Don’t ask’ policy, suspended for 8 days, is back on

Riverside, Calif.--The military’s “don’t ask, don’t tell” policy barring openly gay service personnel went back into force a day after a federal judge refused to issue a stay.

On October 20, the Ninth Circuit Court of Appeals granted the Justice Department a stay of a lower-court ruling declaring DADT unconstitutional.

U.S. District Court Judge Virginia A. Phillips on October 19 refused to stay her week-old injunction against enforcement of the ban, saying that the administration did not prove the possibility of irrevocable harm if the injunction were not stayed.

“The evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights,” her denial reads, as quoted by CNN. “The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights.”

“While defendants’ interests in preserving the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights,” she continued. “The evidence defendants submitted with this Application has not demonstrated otherwise.”

The Pentagon, acting after Phillips’ initial statements on October 18, said the following day that recruiters have been instructed to accept gay and lesbian applicants. They informed applicants that the injunction may be stayed, which it now has.

The Justice Department appealed the September ruling to the Ninth Circuit Court of Appeals. A three-judge panel of the court issued the stay on October 20, and gave the Log Cabin Republicans until October 25 to file a motion against the stay.

The Log Cabin Republicans, the national LGBT Republican organization who brought the suit that Phillips ruled on, pointed out that, while the Department of Defense stopped enforcing DADT eight days earlier, units hadn’t lost cohesion and morale had not plummeted.

“At the same time the Pentagon was complying with the injunction against enforcing ‘don’t ask, don’t tell,’ President Obama’s attorneys were making the argument that compliance would be impossible,” said Log Cabin deputy executive director Christian Berle. “The United States military is the most powerful, most adaptable armed force in the world. It has dealt with racial integration and greatly expanded opportunities for woman, and has grown stronger because of it.”

“Open service for gay and lesbian Americans will be no different,” Berle continued.

Despite speaking out in favor of the policy’s repeal, President Barack Obama said that he wants a congressional repeal, not a judicial one.

“The deal we understand was made between Obama and Gates [the defense secretary] was that it would be a two-year process,” Politico’s Josh Gerstein quoted an LGBT activist with connections to the White House.

According to Gerstein, the deal was that legislative action would be taken after the Pentagon’s working group on DADT issued its report in December. The president would have then pushed legislation in 2011. However, according to the report, LGBT advocates and some Democrats forced a change in the slow-and-steady approach.

The Huffington Post, meanwhile, illustrated repeal opponent Sen. John McCain’s about-face in a threatened second filibuster of repeal in the Senate.

On local television, he said, “Absolutely I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness.”

However, four years ago he said, “The day that the leadership of the military comes to me and says, ‘Senator, we ought to change the policy,’ then I think we ought to consider seriously changing it.”

Defense Secretary Robert Gates supports repeal. McCain’s about-face came when a former congressman announced a primary campaign to unseat him.

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