Advocates warn LGBT servicemembers not to come out until questions are settled
From Staff and Wire Reports
The U.S. Department of Justice on Thursday, Oct. 14 asked a federal district judge to allow the military to continue enforcing “don’t ask, don’t tell” pending the government’s appeal of her ruling declaring the policy unconstitutional.
The request came two days after U.S. District Court Judge Virginia Phillips issued an injunction Tuesday, Oct. 12 ordering the Department of Defense to halt enforcement of DADT worldwide.
The DOJ, which is defending the 17-year-old ban on open service, on Thursday asked Phillips to stay the injunction pending its appeal of her September ruling.
“As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal,” the justice department told Phillips. “However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”
If Phillips denies the request for a stay of the injunction, the DOJ can request an emergency stay from the U.S. Court of Appeals for the Ninth Circuit, which will hear any appeal.
The DOJ has 60 days from the time of Phillips’ injunction to appeal her ruling.
Representatives from Log Cabin Republicans, which brought the lawsuit, and other groups advocating for DADT repeal warned LGBT servicemembers against coming out in the wake of Tuesday’s injunction.
Christian Berle, deputy executive director for Log Cabin Republicans issued a statement Thursday afternoon saying his organization had “expected that the Obama administration would continue to pull out all the stops to defend ‘don’t ask, don’t tell.’” But, Berle pledged, “Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied.”
Berle said Log Cabin Republicans are urging Senate Majority Leader Harry Reid to “do what it takes” to repeal DADT when Congress reconvenes after the midterm elections in November.
“If Sen. Reid treats the minority party fairly, the votes will be there to end ‘don’t ask, don’t tell’ once and for all,” Berle said.
Although the House of Representatives voted this summer to repeal the policy, as an amendment to a Department of Defense spending bill, the measure died in the Senate last month when supporters could not get enough votes to end a Republican filibuster.
Republicans launched their filibuster in protest after Reid added an amendment to the bill dealing with immigration and refused to allow Republicans to add amendments from the Senate floor.
Even though Phillips’ injunction barring enforcement of DADT remains in force, at least for the time being, David Guy-Gainer of Forest Hills, a board member for Servicemembers Legal Defense Network, said his group is urging closeted servicemembers to act with caution.
“If you look at it in terms of gay marriage in California, you remember that sliver of time [between the Supreme Court ruling overturning the state’s ban on gay marriage] and the passage of Proposition 8 [which amended the Constitution], there were couples who were legally married in California. And even after Prop 8 passed, those marriages held up. They are still legal,” Guy-Gainer said.
“There is a chance there could be a window like that created in this case,” he continued. “But it’s too risky. If you have a gay servicemember who stands up while this injunction is in force and tells his commander, ‘Hey, I’m gay,’ and then the injunction is lifted, well the commander isn’t going to just forget that.
“Despite the injunction, we can’t confirm that they have actually stopped discharges, so it’s just too risky to actually come out,” Guy-Gainer said.
Rob Schlein, president of Log Cabin Republicans of Dallas, criticized the White House for appealing the injunction.
“I am very happy that the judge followed through on her decision and issued the injunction. But I think it is very sad that our ‘fierce advocate,’ President Obama, has filed an appeal, which is contradictory to his claims that he wants the law repealed,” Schlein said.
Rich Hisey, a former M.P. in the U.S. Army who is also a member of Log Cabin Dallas, said he feels “really good, very pleased” about Phillips’ ruling in the case and her injunction against DADT, despite the appeal.
“I think this is a big victory for Log Cabin Republicans, and a big victory for the gay community as a whole,” Hisey said. “It’s been a long, long road. But we’re finally getting close to the end.”
Still, Hisey said, he, too, warns gay and lesbian servicemembers to be “very, very cautious right now.”
“I served three years in the Army, in the military police, back in the 1980s. That was a very different time, and I was closeted the whole time I was in the military. Things are different now, but I think if I were in the military now, I would stay in the closet for a while longer at least. I think everything is still up in the air, and it is still too risky to come out,” Hisey said.
Hisey also echoed Schlein’s frustration with Democrats’ failure to repeal DADT, despite their pledges to do so.
“Obama has not shown any leadership, and he still continues to push the DOJ to appeal this ruling,” Hisey said.
“My real frustration is with the Democrats in the Senate. We had a golden opportunity last month to repeal DADT, but Harry Reid played politics with it and added the Dream Act to the bill, even though he knew it wouldn’t pass. That really bothers me.”
Senior White House officials have said the president wants to end DADT, but believes the change should come through Congress and not through the courts.
Shortly after the appeal was filed Thursday, President Obama sent out a notice on Twitter, reiterating his opposition to DADT and renewing his pledge to end the policy.
“Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to,” the president Tweeted. “DADT will end & it will end on my watch.”
The bill passed by the House calls for repeal of DADT, but only after the completion of a Pentagon study that includes a survey on how servicemembers and their family members feel about repealing the policy. That study is due Dec. 1.
This article appeared in the Dallas Voice print edition October 15, 2010.