The U.S. Court of Appeals for the Ninth Circuit ruled late Friday to temporarily reinstate "don't ask, don't tell," though it continues, for now, to block the government from “investigating, penalizing, or discharging anyone from the military pursuant" to the policy.
The Justice Department had asked the court to reconsider its July 6 order barring all enforcement of DADT — a move by government attorneys that vexed many advocates already frustrated with the lengthy repeal process and ongoing legal machinations.
“The executive branch has been exceptionally unreasonable in the amount of time it has now let the legislative certification process drag out,” Servicemembers United executive director Alexander Nicholson, a plaintiff in the Log Cabin Republicans case against “don’t ask, don’t tell,” said Friday. “It is simply not right to put the men and women of our armed forces through this circus any longer."
Government attorneys argued that the Ninth Circuit’s intervention threatened to derail “the orderly process” for repealing DADT. A three-judge panel ruled on July 6 to lift its stay on a federal district judge's injunction against the policy in the Log Cabin case.
“[T]he panel’s order denies the Department of Defense the very thing that Congress and the President believed was most likely to bring about effective transition to open military service by gay and lesbian Service members: the ability to exercise their best judgment about the nature and pace of the transition, so as to ensure that the transition is—and is understood by men and women in uniform to be—the product of the military’s own, informed choices … rather than the product of a judicial order,” the Justice Department argued.
In reply, the Ninth Circuit panel cited the more detailed information DOJ has since submitted to the court on the current status of repeal certification – including the statistic that only one service member had been discharged as a result of DADT this year. That individual, identified by The Advocate as Airman 1st Class Albert Pisani, had asked to be “separated expeditiously” from the armed forces.
The Defense Department has confirmed that three other service members have been approved for discharge by the Secretary of the Air Force this year, however. Replying to request for comment, Defense Department spokeswoman Eileen Lainez said that the three additional service members “were in various stages of the [DADT] separation process when the stay was lifted, and so those separation actions have been suspended.”
Another service member, Airman 1st Class Justin Dailey, told The Advocate last week that his discharge process under DADT had been suspended as a result of the court ruling — and would ostensibly continue to be suspended should the Ninth Circuit’s Friday order stand. Dailey said he had been undergoing discharge proceedings after commanders became aware of his sexual orientation and that he was not seeking to leave the military under DADT.
“[I]f the DOJ was granted a stay, my case would most likely be expedited,” Dailey said via e-mail Friday. “I am so tired of being tossed around and being told my career is over one second and then it's not the next.”
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."
Critics have argued that the legislative conditions on DADT repeal do not go far enough to protect gay service members. The Log Cabin Republicans, which brought its lawsuit against the policy in 2004, has said it will not drop the case challenging DADT’s constitutionality. Oral arguments in the appeal before the Ninth Circuit are scheduled for Sept. 1 in Pasadena, Calif.
The Ninth Circuit panel set a Monday deadline for the Justice Department to explain why it had not given the court detailed information on the repeal certification process in a previous court filing.
“For nine days now, since the Court’s order lifting the stay of judgment, the District Court’s injunction against enforcement of Don’t Ask, Don’t Tell has been back in place,” Earle Miller, an attorney for the Log Cabin Republicans, wrote to the court on Friday. “Individuals identifying themselves as homosexual, including one who was a witness at the trial of this case, have applied for enlistment in the military, and the military has accepted their applications. The government has identified no adverse consequences to have befallen the military.”
