DOJ says DOMA justified to prevent ‘inequities’

LGBT advocates disappointed in Obama administration’s decision to defend law that he favors repealing

Lisa Keen  |  Keen News Service

The U.S. Department of Justice filed its brief Jan. 13 with a federal appeals court that will hear the government’s appeal of two district court decisions that found the Defense of Marriage Act unconstitutional.

The cases are Nancy Gill v. Office of Personnel Management, brought by Gay & Lesbian Activists & Defenders, and Massachusetts v. Department of Health and Human Services, brought by the state.

DOJ, led by Assistant Attorney General Tony West, argues that U.S. District Court Judge Joseph Tauro in Boston erred last year in finding one section of the federal Defense of Marriage Act (DOMA) unconstitutional.

It also argues that “back-and-forth changes” such as those experienced by California concerning the recognition of same-sex marriages “have the potential to cause inequities in the operation of federal programs, and could result in administrative difficulties across a variety of federal programs.”

“Should [a federal] agency begin awarding benefits in response to court decisions that might later be overturned?” asks the brief. “How should the agency treat a couple who is married, then moves to a state where that marriage is not recognized? These questions highlight the administrative difficulties that federal agencies might face if federal law were automatically tied to state law in an area subject to substantial and sometimes rapid change.”

Mary Bonauto, civil rights director at GLAD, says the “touchstone is whether the marriage is valid under state law.”

“Even if a state reversed itself on marriage licensing for same-sex couples by passing an amendment, as happened in California,” said Bonauto, “that change does not affect the validity of the existing marriages.”

In response to the concern about same-sex couples moving from one state to another, said Bonauto, “The general rule is that if a couple is considered married in the state of their residence at the time they apply for a federal marital benefit, then they are married for purposes of that benefit even if they later move to a state that disrespects their marriage.”

Last July, Judge Tauro ruled, in Gill, that DOMA violates the equal protection and due process rights in the U.S. Constitution, and, in Massachusetts, that DOMA violates the 10th Amendment right to exercise control of certain state issues.

Evan Wolfson, head of the national Freedom to Marry group, said he “regrets” DOJ “continues to defend a law that President Barack Obama has repeatedly said is discriminatory.”

“Also disappointing is that the Justice Department is urging the court to give this discriminatory law a presumption of constitutionality,” said Wolfson. “The Justice Department should be asking the courts to examine DOMA with skeptical eyes, not rubberstamp discrimination.”

DOJ’s brief argues that the appeals court should use only the most minimal standard — rational basis — in scrutinizing the reasons the government gives to justify DOMA’s ban on recognition of married same-sex couples when it comes to having access to federal benefits made available to married straight couples. It then claims that the rational justifications behind DOMA are:

  • to preserve a national status quo at the federal level regarding marriage,
  • to ensure “uniform application” of federal law regarding marriage benefits, and
  • to show respect for each state’s sovereignty in developing its own policy concerning marriage.

The latter justification will probably make for an interesting discussion before a three-judge panel of the First Circuit U.S. Court of Appeals later this year. The First Circuit is located in Boston, Massachusetts, which famously became the first state to honor its state constitutional mandate of equal protection with regards to the issuance of marriage licenses.

The Massachusetts Attorney General’s office argued, in its district court brief, that DOMA is not showing respect for the sovereignty of Massachusetts.

“Instead, Congress chose to force Massachusetts (and other States) to violate the equal protection rights of its citizens or risk federal funding,” argued Massachusetts’ brief. “That is not neutrality; rather, it significantly burdens the ability of States to adopt any definition of marriage that does not match the federal one. …”

But while arguing that Congress needs to show respect for each state’s sovereignty, DOJ also argues Congress “could” reasonably conclude that a “uniform federal definition for the purposes of federal law would most consistently address variations between states that permit same-sex marriage and those that do not.”

“Without DOMA,” said DOJ, “federal benefits would vary for same-sex couples from state to state.”

Of course, that’s true for heterosexual couples, too. Only those straight couples who are married are eligible to receive federal marriage benefits. But DOJ adds that “while it may be preferable as a policy matter for Congress to have provided the same benefits to all married couples, the uniform path that Congress chose was permissible.”

The Defense of Marriage Act (DOMA) was introduced by U.S. Rep. Bob Barr (R-GA) and signed into law in 1996 by Democratic President Bill Clinton. Wolfson noted that both have since “repudiated” the law.

GLAD and the Massachusetts Attorney General’s office both filed lawsuits challenging DOMA’s Section 3, which limits the definition of marriage for federal purposes to one man and one woman.

There are three other cases challenging DOMA now in the federal courts. GLAD and the ACLU also filed two other lawsuits challenging DOMA — Pederson v. OPM in a Connecticut federal district court and Windsor v. U.S. in a New York federal district court. Both of these cases, if appealed, will come before the 2nd District U.S. Court of Appeals. Lambda Legal Defense argued its case, Karen Golinksi v. OPM, in federal district court in San Francisco last month. In that case, Lambda’s Marriage Project Director Jenny Pizer is arguing that 9th Circuit court employee Golinski should be able to obtain health coverage for her same-sex spouse the same as other federal court employees can obtain for their spouses. OPM, headed by openly gay appointee John Berry, instructed the 9th Circuit’s employee insurance carrier not to enroll Golinski’s same-sex spouse for coverage. The case is awaiting a decision from U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush.

© 2011 by Keen News Service. All rights reserved.

—  John Wright

Log Cabin urges court to sustain DADT case

Associated Press

SAN FRANCISCO, Calif. — A gay rights group is asking a federal appeals court in California to keep considering whether a trial judge properly struck down the U.S. military’s ban on gays serving openly in the military.

Lawyers for Log Cabin Republicans filed a brief Monday, Jan. 10 arguing that because the ban has not been lifted, the 9th U.S. Circuit Court of Appeals needs to maintain its schedule in the government’s challenge to the lower court’s ruling.

It came in response to a Justice Department motion seeking to suspend the case for at least three months. The department faces a Jan. 24 deadline for submitting opening arguments.

Government lawyers say putting the appeal on hold would allow the Pentagon to focus on training troops and other tasks necessary for completing the repeal of the ban.

Congress has agreed to repeal the “don’t ask, don’t tell” policy.

—  John Wright

Lambda Legal DOMA case heard in California

After the “don’t ask, don’t tell” win this week, mainstream media immediately looked for what we’d be after next. An ABC affiliate in California picked up on partner benefits.

A Lambda Legal case, Golinski v. US Office of Personnel Management, was heard before a district court judge in Northern California on Dec. 17.

“Here it’s very difficult for the government to justify giving unequal health insurance to employees that are doing equal work,” said Lambda Legal Marriage Project Director Jennifer Pizer.

The government’s case is based on the Defense of Marriage Act, which they claim is the basis for denying an employee’s partner health benefits.

In this case, Karen Golinski is an attorney who worked for the San Francisco Federal Appeals Court. She has been a federal employee for 19 years. In 2008, she married her partner. They have a 7-year-old son. Denying her wife benefits given other employees is discriminatory, she claims.

As in other recent cases, this one puts the Obama administration in the position of saying it supports the repeal of DOMA, then sending an attorney to defend the law. If Golinski wins, the ruling probably will apply only to her case.

—  David Taffet

As Equality Texas unveils poll results on bullying, Rep. Anchia files gay adoption measure

State Rep. Rafael Anchia

Senior editor Tammye Nash is down in Austin this morning, where as we speak Equality Texas is holding a press conference to unveil poll results showing that 80 percent of Texans support anti-bullying legislation that protects gay teenagers and the children of gay parents. Fort Worth City Councilman Joel Burns is also there, and comments from former first lady Laura Bush will be shared. More on that here for now and later from Tammye.

But elsewhere on the legislative front this morning, it looks like State Rep. Rafael Anchia, D-Dallas, has again filed legislation that would allow same-sex adoptive parents to have both of their names listed on a child’s birth certificate. This issue has been the subject of litigation in Louisiana, where a federal appeals court recently ruled that the state must issue an amended birth certificate listing the names of both gay parents. The Louisiana attorney general is appealing the ruling, and the gay parents are represented by Ken Upton of Lambda Legal in Dallas, who tells us he’s also itching to challenge Texas’ statute if Anchia’s bill doesn’t pass.

Anchia’s HB 415, filed Friday and similar to a bill he filed last session, would strike language from the Health and Safety Code as shown below:

.

—  John Wright

Oral arguments ‘promising’ in Prop 8 case

Judges grill attorneys from both sides on issue of standing, merits of federal case challenging California’s same-sex marriage ban

Lisa Keen |  Keen News Service

SAN FRANCISCO — Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel on Monday, Dec. 6 that the reason proponents of Proposition 8 have put forth to justify their ban on same-sex marriage is “nonsense.”

That reason, said Olson, reading from a page in the brief filed by attorneys for the Yes on 8 coalition, was that same-sex marriage “will make children prematurely preoccupied with issues of sexuality.”

“If believed,” said Olson, “that would justify the banning of comic books, television, video games, and even conversations between children.”

And it isn’t exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was “protecting children” from the notion that marriage between same-sex couples was OK.

So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.

“Should we look just at the record in the district court?” he asked, or should we “imagine whether there is any conceivable rational basis” to ban gays from marriage?

Olson urged the court not to use its own imagination but to look at the reasons proffered by the Yes on 8 proponents and determine whether they “make sense” and whether they are “motivated by fear” or a dislike of gay people.

“Protecting our children,” said Olson, “is not a rational basis. It’s based on the idea there’s something wrong with” gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday’s argument before the federal appeals court than they had in January and June before U.S. District Court Judge Vaughn Walker. It was Walker’s ruling in August — that California’s ban on same-sex marriage violates the U.S. Constitution — that brought them to the appeals court in San Francisco on Monday. Unlike at the district court trial, where the U.S. Supreme Court barred any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

The three judges on the appeallate panel vigorously challenged each side’s arguments on both matters before the court — Yes on 8 and Imperial County’s legal qualification (standing) to appeal, and the validity of Walker’s declaration that Proposition 8 violates the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-owned Brigham Young University, leveled hard questions at Cooper over Yes on 8’s claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson’s comrade David Boies, about the “problem” created for the court by the fact that neither the governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.

Boies tried to make the point that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.

Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.

Boies argued that the concern about what the governor and attorney general did was a “different issue” than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can’t meet the standard of demonstrating a real injury from the district court’s decision.

It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits “so it’s clear, in California, who has the right to marry and who doesn’t.”

Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding — which was devoted to standing — the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.

The panel seemed equally uncomfortable with the effort by a deputy clerk of Imperial County, Isabella Vargas, to seek standing to appeal Walker’s decision. The judges, particularly Hawkins, pointedly and repeatedly asked why Imperial County’s deputy clerk was seeking the status, and no explanation was given as to why the county clerk did not.

Robert Tyler, an attorney with a religious advocacy legal firm representing Vargas and Imperial County pro bono, evaded the answer to that question both in and out of the courtroom. At a press conference following arguments, he claimed the answer was a matter of attorney-client privilege.

The three judges were equally tough in questions about the merits of Judge Walker’s decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to re-institute segregation in public schools.

“No,” said Cooper.

“Why not?” asked Hawkins.

“Because it would be inconsistent with the U.S. Constitution,” said Cooper.

“As interpreted by the U.S. Supreme Court,” interjected Hawkins.

“Yes,” conceded Cooper.

But in 1870, the U.S. Supreme Court probably wouldn’t have interpreted the constitution to forbid segregation? asked Hawkins.

Cooper conceded that was probably true.

“Well, how is this different?” asked Hawkins.

Judge Smith challenged Cooper using the Loving v. Virginia ruling by the U.S. Supreme Court that said states couldn’t prohibit interracial marriage. He did so by noting that Cooper was arguing that the Supreme Court had already ruled on the right of states to proscribe same-sex marriage in Baker v. Nelson. The high court, in 1972, dismissed the appeal of a gay couple who had sought a marriage license in Minnesota. Dismissing an appeal has more significance than simply refusing to hear an appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is dispute within legal circles as to whether that dismissal means anything today. But Cooper, and others, have tried to make a case that the Baker action is precedent, and that it governs attempts by other states to ban same-sex marriages.

If Baker was precedent, said Smith, then why couldn’t states ban interracial marriage, too?

Cooper had to concede the right of states to decide who can marry is “not an absolute right” and that their right to do so “is limited by the restrictions of the U.S. Constitution.”

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a “good argument for prohibiting divorce.”

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Judge Hawkins challenged Cooper to explain how California’s same-sex marriage ban is different from Colorado’s Amendment 2, which said no law could prohibit discrimination based on sexual orientation. The Supreme Court struck down Amendment 2 in Romer v. Evans, saying the only reason for the law was animus against gay people and that laws may not be justified by mere animus.

Cooper argued that Amendment 2 had been a “sweeping” denial of protections to gay people, in banking, employment, housing, commercial transactions, and many other areas of life. Proposition 8, he said, is focused just on marriage. And, in marriage, said Cooper, society had an interest to protect unrelated to animus against gay people, and that interest is promoting responsible procreation.

Therese Stewart, the openly gay chief deputy city attorney for San Francisco, tackled that argument head-on, by noting that same-sex couples “do procreate — not in same way [as heterosexual couples], but they do procreate.”

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marriage Project, said that, overall, he thinks “it looks promising, both on standing and on the merits.”

Shannon Minter, senior counsel for the National Center for Lesbian Rights, agreed, saying he was especially encouraged that “at least two of the judges seemed highly critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.” And Ted Olson, he said, “was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.”

Jenny Pizer, head of Lambda Legal Defense’s Marriage Project, said she wouldn’t be surprised if the panel’s eventual ruling includes “multiple decisions” on how they reached the same outcome “with different reasonings.”

“And if they conclude Prop 8 is invalid while disagreeing about the details of why,” said Pizer, “that may be just fine.”

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court — during its almost inevitable appeal — would be 2012.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Judges that will hear Prop 8 case called ‘a very good panel’ for gay marriage supporters

Backers of anti-gay California initiative say development means case even more likely to be decided by Supreme Court

LISA LEFF | Associated Press

SAN FRANCISCO — Two judges appointed by Democratic presidents and one named by a Republican will decide if a San Francisco trial judge improperly struck down California’s same-sex marriage ban, a federal appeals court announced Monday, Nov. 29.

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith of the 9th U.S. Circuit Court of Appeals were randomly assigned the landmark case from the court’s pool of 27 active judges.

The panel is scheduled to hear arguments next week over the constitutionality of the voter-approved ban, known as Proposition 8.

Reinhardt, a 79-year-old Los Angeles resident, was appointed by President Jimmy Carter in 1980 and is regarded as one of the 9th Circuit’s most liberal jurists. Hawkins, a 65-year-old Arizonan, was appointed by President Bill Clinton in 1994.

Smith, 61, was appointed by President George W. Bush in 2007 and keeps his chambers in his native Idaho.

Proposition 8′s sponsors are appealing Chief U.S. District Judge Vaughn Walker’s August ruling that overturned the 2008 law as a violation of gay and lesbian Californians’ civil rights. They argue that Walker ignored a U.S. Supreme Court precedent from 1973 that held the U.S. Constitution does not recognize marriage rights for gays.

Observers predicted the panel’s makeup makes it less likely Walker would be reversed.

“Anyone who follows the 9th Circuit closely would say that this a very good panel for the Prop 8 opponents and a very bad panel for its defenders,” said Arthur Hellman, a University of Pittsburgh School of Law professor who is an expert on the court. “I expect a 2-1 decision, with Reinhardt and Hawkins outvoting Smith.”

Proposition 8′s supporters had the same interpretation, and reiterated their plan to take the case to the U.S. Supreme Court, if necessary.

“Judge Reinhardt’s inclusion on the 9th Circuit panel adds more weight to what the Prop 8 Legal Defense team has said since this case was filed in federal court: We fully expect that it will ultimately be decided by the highest court in the land,” the California Family Council, which was part of the coalition of religious and conservative groups that backed the 2008 measure, said in a statement.

When they meet in San Francisco on Dec. 6, one of the issues the judges will consider is whether the ban’s backers had the authority to bring the appeal after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown decided not to challenge the lower court ruling.

Officials from conservative Imperial County have asked the 9th Circuit to allow them to represent the state’s interests if the panel decides that Proposition 8′s sponsors lack standing.

—  John Wright

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

DADT update: Most troops don’t mind serving with gays; appeals court to rule Friday on injunction

A majority of service members who responded to a Pentagon survey wouldn’t mind living and serving alongside openly gay people, according to The Washington Post. Of course, more than half of those who received the survey didn’t respond, which would seem to indicate that they don’t have much of a problem with “don’t ask don’t tell” being repealed, either. And that’s a good thing, because whether they like it or not, they’re already serving alongside gays and lesbians. Besides, it shouldn’t really be up to the troops. Anyhow, the Post’s report is based on findings that were leaked from the study that’s due to President Barack Obama by Dec. 1, on how to end the 17-year-old policy. The Post goes on to note that a federal appeals court is expected to rule later today on whether the military can continue enforcing DADT pending the government’s appeal of a district court’s ruling declaring the policy unconstitutional.

UPDATE: The appeals court did not issue its ruling as expected Friday. Sources said the ruling will be issued next week at the earliest.

—  John Wright

BREAKING: Pentagon revises procedure for discharges under ‘don’t ask don’t tell’

In a change that one expert said could “dramatically reduce” discharges, the defense department issued new guidelines Thursday for enforcement of “don’t ask don’t tell.”

The new guidelines came in the wake of Wednesday’s decision by a federal appeals court to grant a temporary stay of a district judge’s order halting enforcement of the policy.

From Chris Geidner at Metro Weekly:

Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ”personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said while the change could “dramatically reduce DADT discharges,” it doesn’t mean that gays in the military should come out.

“The Pentagon appears to be saying  to the court and to service members that it will provide all service members the protections already afforded officers, but with no delegation of that authority: All proposed DADT discharges, regardless of grade and rank, will be reviewed at the highest civilian levels. This can be a major constructive development for gay and lesbian service members,” Sarvis said.

“This important change could dramatically reduce DADT discharges, if DoD applies the Witt legal standard throughout the military, which requires the Pentagon to find that gay service members would harm military readiness, unit cohesion and good order, before they are discharged. But this Pentagon guidance memo does not end DADT. It is still in place, and service members should not come out.

“The fact that DADT remains law further underscores the urgent need for the full Senate to vote for repeal when it returns to lame-duck session next month.”

—  John Wright

Gay man seeking to re-enlist in Navy says local recruiting office was told to suspend application

John James Coolidge III

The Pentagon has yet to announce that it has directed recruiting commanders to resume enforcement of “don’t ask don’t tell.”

However, a gay man from Plano who attempted to re-enlist in the Navy on Thursday morning said a local recruiting office was notified during his visit to suspend his application.

John James Coolidge III, who was discharged from the Navy under “don’t ask don’t tell” in 2007, said he spent three hours completing the necessary paperwork to re-enlist in the Reserves. However, about 15 minutes before he left the recruiting office, a call came in from a supervisor.

“Everything right now is on hold for my re-enlistment,” Coolidge told Instant Tea early Thursday afternoon. “Everything all depends on the court right now. … I’ll probably call him the first I hear of anything on Monday and figure out where to go from there.”

On Wednesday, a federal appeals court granted a temporary stay of a district judge’s order halting enforcement of DADT. That means the policy is legally enforceable again. But the Defense Department, which on Tuesday said it had notified recruiting commanders not to enforce the policy, hasn’t publicly announced any follow-up guidance.

The stay will remain in effect until sometime after Oct. 25, when the appeals court decides whether to leave it in place pending an appeal of the district judge’s decision declaring the policy unconstitutional. The appeal is expected to take at least several months.

Coolidge said he called the recruiting office before going there Thursday morning to find out whether Wednesday’s stay had changed anything.

“He said: ‘It’s up to you. As of this moment, we haven’t heard anything different, and we’re still going to process you,’” Coolidge said. “I’m glad that I started the process, and I’m hoping that the courts will side with the lawsuit and uphold the injunction and overturn the policy.”

—  John Wright