Friday November 12, 2010

Supreme Court: “Don’t Ask, Don’t Tell” Will Stay, For Now

By Peter J. Smith

WASHINGTON, D.C., November 12, 2010 ( – The U.S. Supreme Court has decided to allow the 1993 law against homosexuals serving in the military to stand while a constitutional challenge to the ban wends its way through the federal appeals process.

The Log Cabin Republicans, a homosexual GOP lobby, had filed an emergency request with the high court to reinstate a federal judge’s worldwide injunction against the military’s enforcement of the ban (commonly referred by the same name as a Pentagon enforcement policy called “Don’t Ask, Don’t Tell”.)

A three-judge panel of the 9th US Circuit Court of Appeals had ruled that the ban should stay in place for the appeals process, and ordered a stay on U.S. District Judge Virginia Phillips’s October order mandating the military allow homosexuals to enlist and forbidding military discharges of open homosexuals.

The Obama Administration argued that the court should deny the Log Cabin Republicans request on the basis that a court-ordered end to DADT would have harmful effects on the U.S. military and hamper an “orderly” transition.

“The military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas,” stated Clifford L. Stanley, under-secretary of defense for personnel readiness, in a document supporting the government’s case.

“Overall, an abrupt change – without adequate planning or time to implement a plan – substantially increases the probability of failure or backlash in the early months of this transition, months that will be critical to our long-term success.”

According to the Associated Press, the high court issued its order keeping the 9th Circuit’s stay in place without comment. The AP also noted that Associate Justice Elena Kagan did not participate. Kagan was US Solicitor General for President Obama before she was tapped for the U.S. Supreme Court.

“Judge Phillips has once again been rebuked for her efforts to anoint herself Commander-in-Chief,” said Family Research Council President Tony Perkins, a former U.S. Marine. “I am gratified that two higher courts have now recognized the importance of judicial deference to Congress, the President and military leaders in setting policy for the armed forces. I hope, and remain confident, that they will do the same in ruling on the merits of this case.”

The report of the Pentagon’s Comprehensive Review Working Group (CRWG) on DADT is scheduled for release on December 1, but has already generated controversy since its findings were leaked to the press.

The report has been criticized by Perkins as overtly biased toward repeal.

“We have criticized this study from the outset because the CRWG was forbidden to explore the central question before the country – not how to implement a repeal of the current law, but whether doing so is in the best interest of the armed forces,” Perkins said in response to news of the leak.

He also objected that no U.S. servicemen or their spouses were ever given the opportunity to answer whether they believed the law should be kept in place or overturned.

Currently only the U.S. House of Representatives has passed a repeal of DADT. The Senate will likely face a vote on DADT’s repeal during the lame-duck session. Passage of the bill so far has been blocked thanks to a GOP filibuster led by Vietnam veteran Sen. John McCain, although the strength of his coalition will likely be tested by the CRWG’s report in December, when the Senate is sure to have another vote.

See related coverage by

Obama Admin Asks Supreme Court to Keep DADT in Place

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