DADT repeal starts Tuesday, but will discrimination continue?

DOJ says Log Cabin lawsuit should be declared ‘moot,’ but LCR attorney warns that without ruling, discriminatory policies could be reinstated

Baldwin.Polis
STILL FIGHTING | Attorney Dan Woods, right, and Log Cabin Republicans Executive Director R. Clarke Cooper, left, pose together following the ceremony last December in which President Obama signed legislation repealing DADT. (Photo courtesy Log Cabin Republicans)

Lisa Keen  |  Keen News Service
lisakeen@me.com

“Don’t ask, don’t tell” will be off the books Tuesday, Sept. 20. But there is still concern among some that the removal of that specific law barring gays from the military will not stop discrimination against gays in the military.

And Servicemembers Legal Defense Network is warning active duty military to be aware of rules affecting them if they choose to be openly gay in uniform.

Log Cabin Republicans’ attorney Dan Woods reminded a three-judge panel of the 9th Circuit U.S. Court of Appeals on Sept. 1 that Congressional repeal of DADT is not enough to end discrimination against gays in the military. Woods noted that before passage of DADT in 1993, there was a military regulation — not a federal law — that banned “homosexuals” from the military.

“That ban had existed for decades,” Woods said.

And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, Woods added, “the government will be completely unconstrained in its ability to again ban gay service in the military.”

The 9th Circuit panel is considering a motion by the Department of Justice to declare the Log Cabin lawsuit moot since Congress has repealed DADT.

R. Clarke Cooper, executive director for Log Cabin Republicans said Tuesday, Sept. 13, that there is no prescribed timeline for the 9th Circuit issuing its decision on the motion.

“I know some people are expecting that we will have a ruling on that by Sept. 20 or just after that, but Dan Woods has told us that it could happen any time. And ‘any time’ means it could come in a month, or it could take several months. There’s nothing that says when the court has to issue its ruling,” Cooper said.

Woods pointed out that even since the repeal was passed by Congress last December, there is a new Congress now, there has already been a House vote to de-fund implementation of repeal, and there are “multiple candidates for president promising, as part of their campaign platforms, to repeal the repeal.”

One member of the panel, Judge Barry Silverman, suggested the latter concern, about presidential candidates, seemed a bit “speculative.”

“Well, there’s an election next year,”  responded Wood.

“Come back next year,” the judge shot back, with a barely stifled laugh. “If any of these things come to pass, it’ll be a different story. But in the meantime, this is the situation we’re faced with.”

The Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. The lawsuit — which won a powerful decision from U.S. District Court Judge Virginia Phillips in September 2010 — was largely responsible for prompting Congress to finally pass a bill repealing DADT in December.

Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal, military officials began warning Congress that it seemed inevitable the courts would strike down the law.

The military wanted a smooth transition to a DADT-free force, and Congress agreed.

Henry Whitaker, attorney for the U.S. Department of Justice, urged the panel to declare the litigation moot. He said the government would submit a motion after Sept. 20 to vacate the ruling and have the case sent back to the district court for dismissal.

Whitaker said that, if the 9th Circuit does affirm the lower court ruling, the government might even consider appealing it to the U.S. Supreme Court. And he stated several times that, until repeal takes effect, the government “is defending” DADT on its merits.

Woods said that if the federal appeals panel agrees with the government and vacates the lower court decision, and then a new president or Congress reinstates the policy, “we’d have to start all over again to prove again that laws banning open gay servicemembers are unconstitutional.

“This case took seven years to get here today. And it would be inappropriate to have to have people go through that all over again,” Woods said.

Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, are loss of benefits under the G.I. bill and benefits from the Veterans Administration, inability to be buried in VA cemeteries, and requirement that discharged servicemembers pay back their student loans.

The DOJ’s Whitaker said Log Cabin’s fear that a future Congress or president might re-enact DADT “does not pass the straight face test.” And, he added, said individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits.

But Woods argued that it “ought not be necessary for every one of the thousands of people who have been discharged under this law to have to do that.

“If you vacate the judgment and take away the case,” Woods added “the government is unconstrained and simply might do it again. History might repeat itself.”

For now, SLDN is trying to prepare gay active duty servicemembers for the historic change that is about to take place Tuesday when the 60-day review period will have ticked away following certification of military readiness to implement repeal.

And, not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban.

“Many servicemembers want to attend these celebrations, and some might want to speak at them,” noted the SLDN website, adding that “no special rules apply to attendance at or participation in such events.”

But SLDN did warn gay servicemembers not to criticize their commanders — past or present — or elected officials, and not to urge defeat of any particular elected official or candidate. And the organization warned servicemembers not to wear their uniform to an event that is partisan in nature.

For more details on what’s allowed and disallowed for active duty service members in uniform, see SLDN.org.

© 2011 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition September 16, 2011.

—  Kevin Thomas

Military will write rules on repeal of gay ban

LOLITA C. BALDOR  |  Associated Press

WASHINGTON — Gays and lesbians will be treated just like any other soldiers, sailors, airmen or marines, the new rules say. But commanders will have some flexibility when they believe it’s needed to maintain order and discipline in their units.

As the U.S. military begins to map out how it will implement the new edict allowing gays to serve openly, the first order of business is drafting the regulations. The rule changes under discussion won’t dictate how troops feel about the change, but will strictly enforce how they act on it.

The U.S. Senate voted Saturday, Dec. 18, to repeal the ban on openly gay service, following earlier action by the Congress. Fulfilling a 2008 campaign promise, President Barack Obama signed the bill into law on Wednesday. But in letters to the troops over the weekend, the four military service chiefs warned that the ban is still in place, and will be for some time to come.

“The implementation and certification process will not happen immediately; it will take time,” Air Force Chief of Staff Gen. Norton Schwartz said in an e-mail to airmen. “Meanwhile, the current law remains in effect. All Air Force members should conduct themselves accordingly.”

Recommendations to implement the repeal were outlined in a 67-page report last month, and now must be formed into concrete regulations. Defense officials said Monday that they still don’t know how long it will take before the Pentagon completes its implementation plan and certifies the change will not damage combat readiness. Once certified, the implementation would begin 60 days later.

The report, however, provides a fairly detailed preview of what troops and the American public can expect, once the new rules are in place.

It puts the heaviest burden on commanders who will have to walk a fine line between enforcing the updated code of military conduct and recognizing when they may need to make some concessions.

The plans call for strict and immediate action when the new rules are violated. But there is also an emphasis on educating troops who are having problems. For example, in a series of vignettes listed in the report, the first course of action is often counseling.

What if a recruiter refuses to process recruits who say they are gay? What about a sailor who requests a new sleeping area to get away from a gay roommate? Can a service member file a complaint against a chaplain who preaches against homosexuality? And can a gay or lesbian service member get leave to travel home when their partner is ill?

In each case the recommended process is careful and deliberate. The recruiter and the sailor should be counseled about the new rules — but in both cases commanders have the authority to approve a move if they believe it’s necessary in order to maintain unit stability. And, yes, chaplains can still preach what they believe.

The health and social benefits, however, are a murky area that Pentagon officials say they are trying to work through.

In some cases, service members may be able to designate a same-sex partner for benefits. In most cases, however, they are treated much like unmarried heterosexual couples. So, same-sex partners will probably not be able to share on-base housing, and commanders don’t have to make allowances for same-sex couples when making duty assignments around the globe.

On Monday, Pentagon spokesman Marine Col. Dave Lapan was peppered with questions about the progress of the implementation plan and what it will say. He said he had no answers yet, as Pentagon officials are just beginning to pull the plan together.

But he also stressed that the ban on open service is still in effect, and any service member who decided to declare he or she was gay would risk enforcement of the current law — which calls for removal from service. Under a new process put in place by Defense Secretary Robert Gates, any discharges under the so-called don’t ask, don’t tell law now have to be approved by the service secretaries.

Gates has said the military will not drag out the implementation process, but it will move carefully and deliberately.

—  John Wright