Gay Troops Sit Tight While Courts Debate 'Don't Ask'

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After a week of legal maneuvers, it's not entirely clear whether the Pentagon's "don't ask, don't tell" policy is dead or alive. The law bars openly gay people from serving in the military. A federal judge this week issued an injunction barring the Pentagon from enforcing the law; the Justice Department has asked another court to reverse the injunction. Where does that leave things?

MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. Im Melissa Block.

MARY LOUISE KELLY, host:

And Im Mary Louise Kelly.

The military's Don't Ask, Don't Tell policy has spent a lot time in court this week. It's the law that bars gays from serving openly in the military. And right now it's on hold because a federal judge issued an injunction, ordering the military to stop enforcing the ban. That was just the beginning though.

Yesterday, the Pentagon responded, saying the military would abide by the ruling. But then the Justice Department appealed the ruling.

NPR's national security correspondent Rachel Martin is here.

Rachel, you're going to help us sort it out. I feel almost like we should a disclaimer. You're not a lawyer.

RACHEL MARTIN: Im not a lawyer...

(Soundbite of laughter)

MARTIN: Still, we're going to persevere. Im going to try to navigate us through all these different machinations of this.

So now, Mary Louise, it's really likely up to the 9th Circuit Court of Appeals. They're the ones who will have to decide whether or not to grant a stay in this case. And thats the legal tool that would essentially put the injunction on hold until the court can consider the government's appeal. But it's unclear exactly when they're going to weigh in on this. It could be days or weeks and until then that leaves a lot of Don't Ask, Don't Tell cases in limbo.

KELLY: Well, what does that actually mean? I mean have we seen any real impact just this week since this ruling came down?

MARTIN: Well, the injunction says that any investigation or pending discharge under Don't Ask, Don't Tell has to stop immediately. And these are cases that can take years sometimes to discharge someone. And so all these cases - the Pentagon has said it will abide by the injunction -and so they've supposedly come to a stop.

But thats caused a lot of confusion among gay service members. They look at this injunction and say oh, Don't Ask, Don't Tell has come to a close. Is it safe for me to come out and self-identify as gay? There are other members who have been discharged under Don't Ask, Don't Tell, who say hey, may be I can go back and re-enlist. I've talked to several gay rights group who say they're fielding calls from all kinds of service members on these very questions.

KELLY: Well, and what is the advice? What are they being told?

MARTIN: Well, they're saying this is not the time to come out and self-identify. That, as far as they're concerned, Don't Ask, Don't Tell is still the law of the land, and the policy won't be over until the appeals court rules on this case. And even then, they say there could be more battles ahead. So they're telling service members to sit tight, so is the Pentagon. It's worth noting today there was a memo that they issued warning troops not to, quote, "alter their personal conduct" in what they say is a legally uncertain environment.

KELLY: This is the thing I have been puzzling over this week, Rachel, which is that President Obama said on the campaign trail, and he has repeated ever since, that he would like to see an end to the Don't Ask, Don't Tell Policy. He repeated yesterday. And yet, the Justice Department, which works for him, has said they're going to appeal this injunction. They're essentially defending Don't Ask, Don't Tell.

How does that make sense?

MARTIN: It would seem to be at odds. And thats what a lot of gay rights groups are kind of pointing the finger at the administration and saying, how can you publicly say you want this to be repealed. At the same time, it's your Justice Department thats actually defending this policy.

But White House officials insist that this is the way things go. That any time there's a challenge made to one of Congress's laws, the Justice Department steps up and defends it. And the White House insists that the only way to repeal Don't Ask, Don't Tell for good is to have Congress change it through legislation, not the courts.

KELLY: Okay. NPR's Rachel Martin, thanks a lot.

MARTIN: You're welcome.

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