“Don’t ask, don’t tell,” will prevail temporarily as law of the land.
The Ninth U.S. Circuit Court of Appeals in San Francisco granted Obama’s request to allow military authorities to resume discharging open gay and lesbian service members temporarily after a one-week pause.
The order will be effective at least until Monday, awaiting presentation from a gay rights group of arguments to a three-judge panel appealing that the discharges should be barred pending its review which could last for many months.
A decision whether the government will allowed enforcing “don’t ask, don’t tell” shall be made by the panel until a judge’s ruling declaring the law unconstitutional has been answered.
As U.S. District Judge Virginia Phillips of Riverside presides over a nationwide suit, flood of activity followed a series of impediments for the government.
Drew in 1993, the law rules out the military from asking troops about their sexual orientation but enforce discharge of those who openly express that they are gay or lesbian which totaled to 13,000.
After numerous rejections on Justice Department requests to delay or dismiss the case, Judge Phillips ruled the law unconstitutional on September 9. In her ruling, she said that it unnecessarily intruded into service members’ private lives and reduces military effectiveness – as opposed to the government’s claim – by aggravating troop shortages and depriving the armed forces of skilled personnel.
An injunction was issued on October 12 which prohibits further discharges and investigation under the law, Judge Phillips refused to suspend her injunction during appeal late Tuesday. The Justice Department appealed for temporary stay early Wednesday arguing that Phillips’ order is an “extraordinary and unwarranted intrusion into military affairs.”
The court panel included judges Diarmuid O’Scannlain, William Fletcher and Stephen Trott. The panel’s order reversed the Pentagon’s unprecedented announcement Tuesday that it was accepting disclosed gay and lesbian recruits.
According to Dan Woods, lawyer for the Log Cabin Republicans, whose suit challenged the law in 2004, the court order is a “minor setback” and that their group consisting of 19,000 members believes that the court of appeals would bring back Phillips’ order after reviewing further arguments.
Log Cabin Republicans cited at a court filing Wednesday, which opposes the emergency stay, President Obama and Phillips statement that ‘don’t ask, don’t tell weakens our national security.’
A legislation abolishing the law backed by Obama passed the House in January but has been delayed in the Senate by a Republican-led filibuster. After the Nov. 2, election, democratic leaders intend again to pass into law, but Sen. John McCain, Republican from Arizona, has vowed to veto.
After the Defense Department finishes the review of how it will affect the armed forces, which is due on December 1, the legislation would discard the 1993 law. In the argument for a temporary stay, the Justice Department said Phillips’ injunction to immediately stop enforcement hinders the government’s “efforts to devise an orderly end to the statute.”