Judge Could Deny Request On 'Don't Ask, Don't Tell'

A federal judge says she's inclined to deny a government request to delay her order that immediately stopped the military from enforcing its ban on openly gay service members. Military personnel want to know what the ruling would mean for them.

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STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. Good morning, Im Steve Inskeep.

RENEE MONTAGNE, host:

And Im Renee Montagne.

We're going to talk, now, about two hot-button issues in the military. We'll hear, in a moment, about the debate on when - if ever - military officers should speak out publicly on military policy.

But first, we have an update on Don't Ask, Don't Tell. Thats the law barring gays from serving openly in the military. Last week, a federal judge issued an injunction ordering the Pentagon to stop enforcing that ban. The judge heard more arguments in the case yesterday, and the legal battle looks set to continue for some time.

As NPR's Rachel Martin reports, all this legal back and forth has left gay service members more than a bit confused.

RACHEL MARTIN: For the past few weeks, Ashley Scheideberg's job has been to sit in a small closet of an office and field calls from her groups Dont Ask Dont Tell hotline. She keeps a running tally of whos calling, and why.

(Soundbite of flipping pages)

Ms. ASHLEY SCHEIDEBERG (Legal Coordinator, Servicemembers Legal Defense Network): It started from right around, here when the injunction came through. And then weve been getting quite a few emails as well.

MARTIN: Scheideberg is a legal advocate for the Servicemembers Legal Defense Network. Aaron Tax is the groups legal director. He says the injunction, issued by Judge Virginia Phillips, has triggered two main questions from troops already discharged under the ban.

Mr. AARON TAX (Legal Director, Servicemembers Legal Defense Network): And theyre asking, when can I rejoin the military?

MARTIN: And from those still serving.

Mr. TAX: And they want to know what the injunction - what the court ruling means for them, and they want to find out if its safe to come out.

MARTIN: The answer to that, he says, is no.

Mr. TAX: There are the shifting sands of the legal process, and its hard to tell where its going to go from here. And given that the law is currently in flux, the safest thing for service members to do is to not come out at this time.

MARTIN: The Pentagon is saying the same thing. Late last week, the military's top personnel official sent out a memo, saying: Yes, the military will abide by the judges ruling to stop enforcing Dont Ask Dont Tell, but that doesnt mean gay troops should start going public. The memo went on to say that if service members quote, alter their personal conduct in this legally uncertain environment, it may have adverse consequences. In other words, sit tight - not a message that sits well with many gay service members.

Lieutenant Colonel VICTOR FEHRENBACH (Combat Pilot, Air Force): They can't let this limbo go on, because theres too many people right now, like me, with pending discharges, or too many people that want to stop lying about themselves.

MARTIN: That's Lieutenant Colonel Victor Fehrenbach, an Air Force combat pilot with more than 19 years of service under his belt.

Lt. Col. FEHRENBACH: You know, I was born on an Air Force Base. The Air Force has been my life. My dad was 20 years in the Air Force. My mother was a nurse in the Air Force. My sister served in the Air Force. You know, we basically bleed blue in my family. And I always knew that I wanted to serve my country, and I wanted to do that in the Air Force.

MARTIN: In 2008, he had a romantic encounter with a male civilian, who outed him to the Air Force and accused him of sexual assault. There was an investigation, but no charges were ever filed. In the process, though, Fehrenbach's homosexuality had been made public. He was recommended for discharge under Don't Ask Don't Tell - forced out of the pilot's seat and into a full-time desk job at his base in Idaho.

He's filed a lawsuit to prevent being discharged, and the recent injunction has landed him in Don't Ask Don't Tell limbo. Fehrenbach blames President Obama, who's promised to end Don't Ask Don't Tell, even though his Justice Department is defending the policy.

Lt. Col. FEHRENBACH: To allow a policy to continue that he admits - the president admits - harms national security; he admits that it is discriminatory; and he admits that is unconstitutional. I just dont understand how he can continue to allow it to happen.

MARTIN: They allow it to happen, administration officials say, because when a law is challenged in a courtroom, it's the government's job to defend it. The only way to end the law for good is for Congress to repeal it. So far, there haven't been enough votes to make that happen.

Rachel Martin, NPR News, Washington.

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