John Wright | Online Editor
“Don’t ask don’t tell” likely will soon go back into effect, after a federal appeals court granted a temporary stay Wednesday of a district judge’s previous order halting enforcement of the policy.
The U.S. Department of Justice requested an emergency stay of the order from District Judge Virginia Phillips, who ruled in September that the policy is unconstitutional, in a lawsuit brought by Log Cabin Republicans. Phillips issued an order halting enforcement of the policy last week, and denied the government’s request for an emergency stay on Tuesday. However, the DOJ then requested an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear the government’s appeal of Phillips’ ruling.
Wednesday’s temporary stay, issued by a three-judge panel of the appeals court, means the ban on open service is legally enforceable again. The temporary stay will remain in effect until sometime after Oct. 25, when the Ninth Circuit court decides whether to leave it in place pending the appeal.
“This interim temporary stay means that ‘Don’t Ask, Don’t Tell’ is once again on the books, and is likely to be enforced by the Defense Department,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “Gay and lesbian service members deserve better treatment than they are getting with this ruling. We now must look to the Senate next month in the lame duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose.”
It’s unclear how Wednesday’s stay will affect gays and lesbians who may have enlisted during the eight days since Phillips’ injunction when the policy was unenforceable.
“The revival of the ‘Don’t Ask, Don’t Tell’ law is a sad day for all Americans who want the best and brightest service members defending our country,” said Joe Solmonese, president of the Human Rights Campaign. “Today’s decision only furthers our resolve to send this law to the dustbin of history and also draws a spotlight on the administration to make good on their pledge to end these discharges that damage our national security.”
Alex Nicholson, executive director of Servicemembers United, said he hopes the appeals court will opt not to extend the stay during the appeal, which will take at least several months.
“While we are obviously disappointed that the injunction was temporarily stayed, we hope that the Ninth 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,” Nicholson said. “An objective look at the evidence before the court clearly indicates that ending ‘Don’t Ask, Don’t Tell’ would not harm military readiness, but would rather enhance it.”
GetEQUAL announced that it will be protesting Thursday when President Barack Obama visits Seattle.
“This temporary stay, sought by President Obama’s Department of Justice, bring the military’s discriminatory ‘Don’t Ask, Don’t Tell’ law back from the dead,” said Robin McGehee, co-founder and director of GetEQUAL. “It is a travesty that after numerous attempts, President Obama and Attorney General Eric Holder will go down in history as the Administration that breathed life back into ‘Don’t Ask, Don’t Tell.’ The lives and careers of openly gay and lesbian servicemembers are now back in the crosshairs of our government and a renewed commitment to discrimination falls squarely in the hands of this White House.”