Court Orders Immediate Halt Military Ban On Gays

A federal appeals court ordered the U.S. government on Wednesday to immediately cease enforcing the ban on openly gay members of the military, a move that could speed the repeal of the 17-year-old rule.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said the “don’t ask, don’t tell” policy must be lifted now that the Obama administration has concluded it’s unconstitutional to treat gay Americans differently under the law.

The appeals court noted that Congress repealed the policy in December and that the Pentagon is preparing to certify that it is ready to welcome gay military personnel.

Pentagon officials said Wednesday that they will comply with the court order and are taking immediate steps to inform commanders in the field. Col. Dave Lapan, a Pentagon spokesman, said the department is studying the ruling.

Gay rights advocates said without an appeal to the U.S. Supreme Court — which seems unlikely since the Pentagon already is committed to repealing the rule – the government now is barred from discharging gay or lesbian service members anywhere in the world.

“The ruling … removes all uncertainty — American service members are no longer under threat of discharge as the repeal implementation process goes forward,” said R. Clarke Cooper, the Log Cabin Republicans’ executive director.

The ruling came in response to a motion brought by Log Cabin Republicans, a group for gay GOP members, which last year persuaded a lower court judge to declare the ban unconstitutional.

After the government appealed U.S. District Judge Virginia Phillips’ decision, the 9th Circuit agreed to keep the policy in place until it could consider the matter. The appeals court reversed itself with Wednesday’s order by lifting its hold on Phillips’ decision.

“The circumstances and balance of hardships have changed, and (the government) can no longer satisfy the demanding standard for issuance of a stay,” the panel said.

Although the stay is lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government’s appeal of the lower court’s decision is valid. But it’s unclear whether the Pentagon will pursue the appeal, since it has already said it will stop enforcing the ban.

Still, Dan Woods, the lawyer representing Log Cabin Republicans, cautioned gay military personnel against rushing to declare their sexual orientations until the government declares that it intends to abide by the ruling.

During the eight-day period last fall before the 9th Circuit put Phillips’ injunction prohibiting enforcement of “don’t ask, don’t tell” on hold, several of the estimated 14,000 veterans who had been discharged under the policy unsuccessfully tried to re-enlist. A handful of Air Force members and members of the National Guard have been discharged from the military under the policy since December.

The Pentagon has been moving carefully to implement the repeal of the ban on openly gay troops. Under the law passed and signed by the president in December, final implementation would go into effect 60 days after the president and his senior defense advisers certify that lifting the ban won’t hurt troops’ ability to fight.

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he was hopeful the Department of Defense would not challenge Wednesday’s order.

“This whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy,” Sarvis said.