The three branches of the federal government are all stalled in overturning the “don’t ask, don’t tell” policy, which bars gays and lesbians from serving openly in the military. President Barack Obama, who campaigned for office with a promise to end the policy, could end the stalemate by letting the courts know the White House thinks the policy is unconstitutional.
Instead, the president has said the matter should be resolved by Congress.
Congress also is stalled. The House passed the National Defense Authorization Act in May including a provision that would repeal the policy 60 days after a Pentagon study is completed and after the defense secretary, the chairman of the Joint Chiefs of Staff and the president certify that repeal would not harm military effectiveness.
But the Senate balked at even that cautious conclusion. Sen. John McCain led a filibuster that blocked Senate action.
Pentagon leaders are in the midst of a study on the policy change and want time to prepare for a change.
Federal District Judge Virginia A. Phillips cut through the procedural underbrush on Sept. 9 and declared the policy unconstitutional. She granted an immediate worldwide injunction prohibiting the Defense Department from enforcing or complying with the policy.
The Justice Department appealed her ruling and requested a stay. She denied the stay, but a three-judge panel of the appeals court granted it.
Immediate action by either the president or the appeals court appears unlikely. The White House and the Justice Department have said repeatedly that President Obama is bound by his oath of office to defend any law, although former Solicitor General Ted Olson, the successful challenger of Cali-fornia’s ban on same-sex marriage, said the Justice Department could have declined to appeal Judge Phillips’ ruling.
A long appeal process, almost certainly winding up before the Supreme Court, would leave in limbo gays already serving in the military and gays who have been forced out under the policy and now want to re-enlist.
Justice Department attorneys argue that letting Judge Phillips’ order stand “would create tremendous uncertainty” for gay service members and obstruct Pentagon plans for adapting to integration. Lawyers for the Log Cabin Republicans, which filed the suit, contend that depriving gays of their civil rights is a more serious matter.
As the dispute festers, President Obama may conceivably override legal tradition and issue an order ending “don’t ask, don’t tell.” That would be in the style of former President Harry S. Truman’s order on July 26, 1948, ending racial segregation in the armed forces, His order led to peaceful and workable integration with no harm to troop morale.
Walter Dellinger, a former head of the Justice Department’s Office of Legal Counsel, urged in the Oct. 20 New York Times that the president, while appealing the Phillips ruling, could tell the appellate court that he believes it is unconstitutional. Former President Bill Clinton did this in 1996 with regard to a law requiring that service members with HIV be kicked out of the military.
Leaving gay service members in limbo is unfair, costly and wrong.