Military Gay Ban Reinstated

"Don't Ask, Don't Tell" is once again the law of the land.

“Don’t Ask, Don’t Tell” is once again the law of the land.

A federal appeals court on Wednesday temporarily granted the U.S. government’s request for a freeze on a judge’s order requiring the military to allow openly gay troops.

A three-judge panel of the 9th U.S. Circuit Court of Appeals instructed lawyers for the gay rights group that brought the lawsuit successfully challenging the “don’t ask, don’t tell” 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.

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.

This is why the stay should have been pro forma.  Until the issue is settled either by Congress or the Supreme Court, gays in the military are in a no-man’s land.   Those who “told” during the days when the policy were in abeyance must now, as a matter of law, be processed for separation from the service.

Not only was this predictable, it was predicted.  Indeed, the Pentagon had the good judgment and decency to advise gays to stay in the closet.

That Congress has the authority to set unusually strict conditions for service in the military — including abridging fundamental rights guaranteed by the Constitution — is a settled law, having withstood dozens of judicial challenges over the decades.  It’s quite likely that, if Congress fails to overturn the existing policy, the Supreme Court will uphold it.   It was, therefore, of supreme arrogance and poor judgment that a mere district court judge thought she could get away with not granting a stay on her order.

FILED UNDER: Gender Issues, Law and the Courts, Military Affairs,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Franklin says:

    While I’m in favor of the policy being eliminated, why, at this point, would anybody want it to be ended by a handful of judges? The writing’s on the wall, DADT will be gone, probably within the year. Why not let Congress and the military leadership do it so it at least seems to have the backing of the majority?

    I understand the majority doesn’t get to decide rights, etc., but wouldn’t it be a greater success if they clearly backed this change? I guess the only real reason for this lawsuit to be pursued is to force the issue.

  2. says:

    That’s kind of the problem, if left up to congress it won’t be gone in a year or ten.

  3. anjin-san says:

    > probably within the year

    Care to bet?

  4. anjin-san says:

    > Now our men and women can serve w/o distraction

    Except of course, for the second class citizens who are forced to live a lie.

  5. floyd says:

    ” etc.,”

    That neither.

  6. ponce says:

    Kinda reminds me of the Terri Shiavo disgrace.

  7. Richard Gardner says:

    This could be in the courts for years, but I suspect the Administration’s hand has now been forced and movement will occur, though no guarantee on Congress’ pace.

    I saw some awful media coverage yesterday. One AP piece referred to Capt Choi enlisting at a NYC Recruiting Station (officers don’t “enlist,” and the application to return to active service would take longer than a day to process). Another AP piece went into a tangent on how USMC Recruiters hadn’t gotten guidance from the Army yet (While the Army is in charge of MEPS, each of the Services sets its own guidelines under OSD, in fact, they are often in competition for the same recruits). The reporter also expected someone at a Recruiting Station (probably in a cheap strip mall) to already have policy guidance a couple of hours after the event. Things don’t always operate that fast.

  8. mike says:

    I am not an expert on congress in the least so I will pose this question. If the republicans win back a number of seats in the house and senate, is it really likely that DADT will be repealed in the next congress considering it just failed in the current congress? will it be a lame duck congress changing the law after the elections? Thoughts?

  9. Franklin says:

    Care to bet?

    Come to think of it, perhaps not. Not with the Republicans getting the House. But the demographics are simple – most of the people who think DADT is a great idea will be dead soon enough.

    So maybe not within a year, but within five I’m sure. I’d be willing to bet a small used car.