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Appeal Court rules that ‘Don’t Ask, Don’t Tell’ is unenforceable

By Kase Wickman
Wednesday, July 6, 2011 16:42 EDT
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A federal appeals court in San Francisco said that enforcement of the “Don’t Ask, Don’t Tell” policy banning gays from the military must be immediately halted, the Associated Press reported.

Though the House and Senate both voted to repeal the controversial policy in December 2010, the Pentagon still must sign off any necessary changes to accommodate the new rules, and the Secretary of Defense, top military officer Admiral Mike Mullen, and President Barack Obama must also certify that the military is ready. Sixty days after certification, the ban on gays and lesbians in the military will officially be lifted.

The lawsuit, Log Cabin Republicans v. USA , may or may not affect when the ban will be lifted. The three-judge panel sided with the Log Cabin Republicans, a group representing LGBT Republicans, saying that now that Obama has said the ban is unconstitutional, it can no longer be enforced.

The lawsuit has been rolling on since 2004, when it was first filed as a challenge to DADT’s constitutionality. The bench trial began in July 2010, and Judge Virginia A. Phillips ruled that DADT would be under “immediate scrutiny” — meaning that as long as the policy was a means to a governmental end that could be achieved in no other way, it was considered constitutional. In September 2010, Phillips ruled that the ban was unconstitutional, and in October 2010 issued an injunction to stop all enforcement of Don’t Ask, Don’t Tell. The government took their request to a higher court, which granted them a stay of the injunction.

Wednesday, the 9th U.S. Circuit Court of Appeals ordered the stay vacated, meaning Phillips’ ruling holds, and Don’t Ask, Don’t Tell is considered unconstitutional and therefore cannot be enforced.

U.S. Attorney General Eric Holder wrote in a February 23, 2011 letter to House Speaker John Boehner that “there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities.”

This, in tandem with the government finding the Defense of Marriage Act in need of “heightened scrutiny,” meant that the government could no longer make the case for Don’t Ask, Don’t Tell’s necessity, as the court cites in its order to vacate the stay.

“The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay,” the order says.

Oral arguments in the case are scheduled to continue August 29, 2011 in Pasadena, Calif., but it’s unknown whether Don’t Ask, Don’t Tell will still be fully in effect by then.

Servicemembers United, the U.S.’s largest organization of gay and lesbian service members, issued a statement applauding the court’s decision.

“With the wait for certification dragging out beyond a reasonable time frame, the Court has once again stepped in to require the Pentagon to stop enforcing ‘Don’t Ask, Don’t Tell,’ and this time it very well may be for good,” Alexander Nicholson, Executive Director of Servicemembers United and the sole veteran plaintiff on the case said. “I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law.”

Creative Commons image via flickr user infomofo

Kase Wickman
Kase Wickman
Kase Wickman is a reporter for Raw Story. She holds a journalism degree from Boston University and grew up in Eugene, OR. Her work has been featured in The Boston Globe, Village Voice Media, The Christian Science Monitor, The Houston Chronicle and on NPR, among others. She lives in New York City and tweets from @kasewickman.
 
 
 
 
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