'Don't Ask, Don't Tell' Is Back, But With Limits

The Defense Department has declared that "don't ask, don't tell" is once again the law of the land but has set up a new system that could make it tougher to get fired for being openly gay.

Defense Secretary Robert Gates on Thursday ordered that all firings under the 1993 law must now be decided by one of the four service secretaries in consultation with the military's general counsel and his personnel chief.

The move puts the question of who can be fired for being openly gay in the hands of just five people — all of them civilian political appointees who work for an administration that thinks the law is unjust.

It comes after a three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday temporarily granted the U.S. government's request for a freeze on the judge's order halting the policy.

The appellate court instructed lawyers for the Log Cabin Republicans, the gay-rights group that brought the lawsuit successfully challenging the policy, to file arguments in response by Monday. The judges would then decide whether to extend the temporary stay while it considers the government's appeal of U.S. District Judge Virginia Phillips' ruling that the policy was unconstitutional.

The 1993 don't ask, don't tell rule says gays may serve, but only if they keep secret their sexual orientation.

NPR's Rachel Martin told Morning Edition host Steve Inskeep that the latest ruling has "created a little bit of uncertainty and chaos." The question, she said, is whether the military will "enforce don't ask, don't tell as normal during this time of judicial uncertainty or [will] the Pentagon ... abide by the injunction and suspend the policy."

It was unclear what effect the temporary freeze would have on the Pentagon, which has already informed recruiters to accept openly gay recruits and has suspended discharge proceedings for gay service members.

Cynthia Smith, a Pentagon spokeswoman, said that "for the reasons stated in the government's submission, we believe a stay is appropriate." She declined to say whether the Defense Department would roll back its guidance to military lawyers and recruiters that they must abide by last week's injunction. It has been assumed, however, that the Pentagon would revert to its previous policy of don't ask, don't tell if a stay were to be granted throughout the appeals process.

The White House referred questions to the Justice Department. Alisa Finelli, a spokesperson for the department, declined to comment Wednesday.

President Obama said last week that the Clinton-era law "will end on my watch," but he added, "It has to be done in a way that is orderly, because we are involved in a war right now." He noted that he supports repeal of the policy, but only after careful review and an act of Congress.

Martin said that "time and again in the [court] motion, in the actual documents, the government talks about how the Obama administration wants very much to do away with don't ask, don't tell, but the government argues that this has to be done in a systematic and orderly way."

A new CBS News Poll says a majority of respondents support allowing gays and lesbians to serve openly in the military.

The telephone survey of 804 adults nationwide, conducted Oct. 6-8, found 56 percent of those questioned favored allowing gays to serve openly, compared with 31 percent opposed. CBS said the result was similar to a February poll in which 58 percent of respondents supported open service, with 28 percent opposed.

The poll had a margin of error of plus or minus 4 percentage points.

A survey of 400,000 troops, meant to gauge service members' attitudes toward the policy and the possibility of repealing it, is not due out until early December.

NPR's Martin explained that while the results aren't yet public, the questions are known and they are "very specific, even [asking] ... 'Would you be comfortable showering next to someone who might be a homosexual.' "

A lawyer for the Log Cabin Republicans said the group was disappointed by the court's decision but called it a minor setback. The group, which brought its lawsuit in 2004, argues that forcing gays in uniform to remain silent about their personal lives violates their First Amendment rights and that the military's reluctance to end the policy was based on unfounded fears, not facts.

"We hope that the 9th Circuit will recognize the inherent contradiction in the government's arguments for a longer stay in light of eight full days of non-enforcement with no 'enormous consequences,' " said Alexander Nicholson, a gay veteran who also was a plaintiff in the Log Cabin lawsuit.

Government lawyers argue that striking down the policy and ordering the Pentagon to immediately allow openly gay service members could harm troop morale and unit cohesion when the military is fighting two wars.

But there are other concerns that involve implementation of a new policy that would allow gays to serve openly, Martin said.

"They are going to have to overhaul sexual harassment rules; they are going to have to address the benefits question," she said. "What are you going to do about gay partners — is the military going to cover those people? Those are huge questions that have to be worked out."

The order was signed by the three 9th Circuit judges hearing emergency motions this month: Diarmuid F. O'Scannlain and Stephen S. Trott, who were appointed by President Ronald Reagan, and William A. Fletcher, an appointee of President Bill Clinton.

Material from The Associated Press was used in this report

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