Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“The president claims to want to see ‘don’t ask, don’t tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright

BREAKING NEWS: Senate Republicans halt repeal of ‘don’t ask don’t tell’ with filibuster, 56-43 vote

John Wright  |  Online Editor
wright@dallasvoice.com

A proposal to repeal “don’t ask don’t tell” came to a screeching halt Tuesday afternoon in the U.S. Senate, where Republicans mustered enough votes to filibuster a Defense spending bill that includes the measure.

The Senate voted by a margin of 56-43 to move forward with debate on the Defense spending bill, but 60 votes were needed to overcome the Republican filibuster.

Both of Texas’ senators, Republicans John Cornyn and Kay Bailey Hutchison, joined their party’s filibuster of the Defense spending bill.

Tuesday’s vote cast doubt on the possibility of repealing DADT anytime soon, with Republicans expected to pick up seats in mid-term elections. However, the Defense spending bill containing DADT repeal is expected to come up again in the lame duck session after the elections.

“I’m disappointed by the vote today, but make no mistake: this is a cause whose time has come,” said Sen. Joe Lieberman, an Independent from Connecticut who strongly supports repealing the military’s 17-year-old ban on open service. “I remain confident that we will repeal this policy that is unjust and discriminatory and counter both to our national values and our national security. We didn’t win today, but we can win this fight this year.”

The Pentagon is due to issue a report on the impact of DADT repeal Dec. 1, and some senators have said they won’t vote for DADT repeal until the report is complete. Still, advocates for DADT repeal indicated that they believe chances for the bill’s passage in the lame duck session may be slim.

President Barack Obama has said he wants to repeal DADT and vowed to do it this year. Also supporting repeal of the policy are Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff. The Defense spending bill, including the DADT repeal provision, passed both the House and the Senate Armed Services Committee this spring. And even if the DADT repeal measure passes the Senate, it wouldn’t take effect until after Obama, Gates and Mullen certify that it won’t hurt troop morale and military readiness.

Servicemembers United, the nation’s largest organization of gay and lesbian troops and veterans, issued a statement following Tuesday’s vote saying that the 60 votes needed to break the Republican filibuster in the Senate had previously been lined up. However, “last week Senate Majority Leader Harry Reid decided to use an uncommon procedural privilege on the bill that eroded support for breaking the filibuster and guaranteed the vote’s failure,” the group said.

“Intense lobbying and public pressure over the past week proved not to be enough to force either side to back down,” Servicemembers United said.

In addition to DADT repeal, Reid had pledged to amend the Defense spending bill with the DREAM Act, which would provide a path to citizenship for certain immigrants who came to the U.S. illegally as minors. Reid also wanted to limit the number of amendments that could be offered by Republicans, who in turn accused him of playing politics with the bill and trying to mobilize Latino and LGBT voters in advance of the elections.

Two Democrats, Blanche Lincoln and Mark Pryor of Arkansas, joined the Republican filibuster. Reid ultimately voted against moving forward with the bill, but his vote was a procedural move that will allow him to bring it back up for a re-vote, presumably during the lame duck session.

“Senator Reid failed to reach a compromise with Republicans and our military servicemembers will need to wait until the November elections are over for the U.S. Senate to vote on a repeal,” said R. Clarke Cooper, executive director of Log Cabin Republicans. “This partisan arrogance is an example of why voters will be turning away from Democrats on Nov. 2.”

Michael Mitchell, executive director of National Stonewall Democrats, countered that the blame for Tuesday’s filibuster lies with the Senate Republicans who led it — and especially Arizona’s John McCain.

“Shame on the Republicans for not even allowing the repeal of DADT to be brought to the Senate floor for debate,” Mitchell said. “Senate Republicans have tragically blocked the National Defense Authorization Act because it contains language to repeal ‘Don’t Ask, Don’t Tell,’ showing themselves to be far outside of the American mainstream. Their actions today are just more obstructionism and willful disregard of what eight in 10 Americans want. It is a sad the lengths the GOP will go to in order to discriminate against soldiers who want to serve our country openly, honorably and with integrity. It is nothing short of a slap in the face to their service in their fight for our freedoms.

“Today, one man’s bigotry and opinions proved how out of touch the GOP is with the majority of Americans. Today Sen. John McCain held back progress and history. Sen. McCain along with the rest of the Republican party is consistently out of touch with the values that Americans hold true to in 2010,” Mitchell said. “Our commitment to repeal DADT is as strong as it was before the vote. Our commitment continues as we work and campaign to elect courageous democrats who will keep working for our full equality is even stronger. It is imperative that we keep this vote in mind when we go to the polls on Election Day and remember which party stands in the way of our path to equality.”

GetEQUAL, the national LGBT direct action group, launched a petition calling on President Barack Obama to issue an executive order halting discharges under DADT until it can be repealed legislatively. The petition is here.

“Despite this abysmal failure of Congress, there is something President Obama can do immediately to protect our gay and lesbian soliders — even if full repeal is dead in the water for now,” GetEQUAL said. “We are calling on the President to issue an Executive Order RIGHT NOW to unequivocally state that military discharges must end, immediately,” GetEQUAL said. “On top of that, and if he won’t take action, we need you to take this one step further. We need volunteers to help us hold the President accountable and meet him head-on during this election season, asking him at each campaign stop and at each fundraising party, “WHEN WILL THE DISCHARGES END?” When you sign the petition, let us know if you’re willing, if President Obama comes to your town, to take action as a first responder.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, called Tuesday’s vote a “frustrating blow to repeal of this horrible law.”

“We lost because of the political maneuvering dictated by the mid-term elections,” Sarvis said. “Let’s be clear: Opponents to repealing ‘Don’t Ask, Don’t Tell’ did not have the votes to strike those provisions from the bill. Instead, they had the votes for delay. Time is the enemy here. We now have no choice but to look to the lame duck session where we’ll have a slim shot. The Senate absolutely must schedule a vote in December when cooler heads and common sense are more likely to prevail once midterm elections are behind us. Servicemembers Legal Defense Network will continue to take this fight to the American people, the vast majority of whom support repeal of ‘Don’t Ask, Don’t Tell.’”

Rea Carey, executive director, National Gay and Lesbian Task Force, accused the Senate of “playing politics with people’s lives.”

“Filibustering the defense authorization bill to block action on ‘Don’t Ask, Don’t Tell’ repeal and the DREAM Act — two measures that do justice to the fundamental principle of fairness — is a disappointment and disservice to our country,” Carey said. “Seventy-eight percent of Americans support ending ‘Don’t Ask, Don’t Tell’ and countless others believe that young people should be provided a path to citizenship in the country they love and have always called home. Today’s Senate vote mocks those ideals. The senators who led and supported the filibuster effort should be ashamed.”

Alexander Nicholson, founder and executive director, Servicemembers United, called the vote “inexcusable.”

“Today’s vote is a failure of leadership on the part of those who have been duly elected to serve this nation and to put the best interests of the country ahead of partisan politics. The Senate could learn a good lesson from those who serve in uniform and who stand to benefit from proceeding to debate on this bill — serving this country means putting politics aside and getting the job done. It is simply inexcusable that this vote failed today.”

—  John Wright