Court: Military May Keep Gay Policy For Now

A federal appeals court ruling has cleared the way for the Pentagon to resume enforcing the policy that bars homosexuals from serving openly in the armed forces. The decision by a three-judge panel in San Francisco Wednesday temporarily blocks a lower court judge's injunction against enforcement of the military's "don't ask, don't tell" policy.

RENEE MONTAGNE, Host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, Host:

And I'm Steve Inskeep.

Yesterday, the Pentagon could not enforce its Don't Ask, Don't Tell law. Today, it can. And as for next week, we have no idea.

MONTAGNE: Don't Ask, Don't Tell, of course, is the law banning gays from serving openly in the military. A lower court ruled, last week, that the Pentagon could not enforce the law. The Pentagon said it would respect that ruling and even said it would allow people to enlist who said they were gay.

INSKEEP: That lasted all of a day. And now an appellate court says Don't Ask, Don't Tell is basically back in effect. We're going to try to sort this out with NPR's National Security Correspondent Rachel Martin, who's in our studios. She's with us live.

Good morning.

RACHEL MARTIN: Good morning, Steve.

INSKEEP: OK. So what happened here?

MARTIN: OK. So it's important to understand that this whole back and forth, right now, has been about trying to figure out what the military should do while this particular case makes its way through the appeals process.

INSKEEP: And that's what's happening here. You keep going to a higher level and somebody rules differently?

MARTIN: Exactly. It's created a little bit of uncertainty and chaos. Question: Would the military enforce Don't Ask, Don't Tell as normal during this time of judicial uncertainty, or would the Pentagon have to abide by the injunction and suspend the policy.

The government has argued that that could create what we're seeing now - a lot of chaos. And they asked the appeals court to issue a stay, essentially keeping things status quo, keeping the policy in place until a final decision can be made about its future.

Now the 9th circuit, as you say, has agreed with the government and issued that stay. So that means that the military, can again, enforce Don't Ask, Don't Tell.

INSKEEP: OK. Don't Ask, Don't Tell - the double negative policy is now positively in effect for the moment. What reasons would the government have for seeking to do that?

MARTIN: Well, the government made several different arguments to the court. First, they took up the issue of jurisdiction. They argued that this one particular lower court judge does not have the power to issue a ruling that affects the entire US military, since the case was brought by one group - the Log Cabin Republicans, which is a gay rights group. And they argued that that group doesn't actually represent the entire U.S. military.

They also argued that if the court didn't issue a stay, it would create, again, this sense of uncertainty. And time and again, in the 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. And just ruling, all of a sudden that the law is changed and it's over, will essentially jump start this orderly process before the military has time to come up a plan to implement the new rules if the law is repealed.

INSKEEP: I think we need to explain more, what the military's talking about when they talk about systematic and orderly; because people know that Defense Secretary Robert Gates, Chairman of the Joint Chiefs Admiral Mike Mullen want to get rid of Don't Ask, Don't Tell. President Obama wants to get rid of Don't Ask, Don't Tell. So if courts are pointing them in that direction, why would they fight so hard to keep it in place for a while?

MARTIN: Well, this is what is, perhaps, the largest bureaucracy in the world, Steve. It takes a really long time to turn this ship. And this is what Secretary Gates and Admiral Mullen have argued. They say, listen. OK. We want to do away with this policy. Give us time to come up with a plan. It's not as simple as just saying it's over.

They're going to have to overhaul sexual harassment rules. They're going to have to address the benefits question. What do you do about gay partners? Is the military going to cover those people? These are huge questions that have to be worked out. They have to come up with a plan for sensitivity training for troops.

And so they're trying to come up with a way to make this happen in an orderly fashion. They've conducted a survey of troops - 400,000. The results of that survey are expected in early December.

INSKEEP: They surveyed 400,000 troops?

MARTIN: Exactly. And there are a lot of concerns that these troops are raising. We haven't seen the results of that survey yet. But the questions get very specific, you know? Even talking about - do you feel comfortable showering next to someone who may be a homosexual?

INSKEEP: So what happens now?

MARTIN: Now, there are a couple of different movements in different fronts. The Pentagon study's coming out. The appeals court has to take up this case. And Congress is waiting to take this up again in the lame duck session, unsure as of yet, whether or not they'll have the votes to repeal it.

INSKEEP: But for today, Don't Ask, Don't Tell - in effect, right?

MARTIN: For today.

INSKEEP: OK. Rachel, thanks very much.

MARTIN: You're welcome.

INSKEEP: That's NPR's Rachel Martin.

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'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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