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Culhane: Answers (and questions) on 'Don't Ask, Don't Tell'

October 21st, 2010 Leave a comment Go to comments

How long must I continue writing about “Don’t Ask, Don’t Tell”?

Don’t ask.

It’s hard to see this drama ending any time soon, and much of what one can write about it, from the legal perspective, is speculative and ever-changing. But this isn’t a subject I can ignore for this week’s column – there have been too many important policy and legal developments.

So let’s try to walk through what’s going on, and what might be expected. Much of what follows is necessarily speculative.

Since Judge Virginia Phillips’s decision refusing to stay the injunction was just overruled  by the Ninth Circuit, where are we? Is DADT enforceable again?

Yes, even though the Department of Defense hasn’t spoken yet. During the past few days, we’ve seen dramatic evidence of the effect of the lower court’s ruling. In an inspired piece of activism, gay and lesbian activists have shown up at recruiting centers and tried to enlist. As reported here, they were initially turned away. In the wake of Judge Phillips’s decision, though, the Defense Department’s general counsel stated that compliance with the law required that these recruits be accepted. Of course, Dan Choi – now too old to be a Marine, apparently – has enlisted in the Army.

Is this situation likely to change?

It’s just about certain to change. Since the federal appellate court (the Ninth Circuit) has stayed the injunction against enforcement, expect a statement to issue almost instantly that will once again prevent enlistment of openly gay and lesbian soldiers. (In fact, I wouldn’t be surprised if that’s happened by the time you read this.)

But whether the stay will remain in effect for long is another matter entirely. The court issued a “mini-stay,” giving the other side (Log Cabin Republicans) until October 25 to file a response. Then it will decide whether to issue a longer stay.

Courts apply several factors in deciding whether to stay a decision pending appeal, including whether the party seeking the stay is likely to ultimately succeed on the merits of the case, and where the danger of irreparable harm, if any, lies.

Are there other factors that could affect the appellate court’s decision whether to issue the longer-term stay?

Yes. In this case, as in the Prop 8 case, judges are keenly aware of the effect of changing the status quo. In the Prop 8 case, the judges might have one eye on the consequences of allowing thousands of same-sex couples to marry, and then having that right taken away if and when the Supreme Court were to uphold the law. We’ve already gone through this once already with marriage equality in California!

Here, of course, the situation is even messier. Openly gay and lesbian people enlisted! Investigations and discharge proceedings were suspended! But since Judge Phillips’s decision was overturned, what now? All of these men and women might be kicked out. Those enlisting could argue, plausibly, that they can’t be punished for speaking while the injunction against the law was in effect, but the hard fact is that the military will now have the information, and might then go looking for other, independent information that could result in investigation and discharge.

In other words, what now look like brave actions in enlisting, or coming out while in the service, could turn out to be costly.

Oh, and one other factor: The Ninth Circuit might be looking over its shoulder at the Supreme Court, which could grant the stay if the appellate court doesn’t.

What about the pending legislation to repeal DADT? How, if at all, will (or should) that figure into what happens in the courts?

This is where the situation gets especially complex, and especially frustrating for the Obama Administration. The judge’s world-wide injunction was an unexpected earthquake, complicating the carefully calibrated plan for legislative repeal, and embarrassing the Administration into having to defend a law that it’s working so hard to get rid of. What arguments will they make on appeal, given that the trial court found that the policy violated LGBT service members’ fundamental rights?

From the judicial side of this equation, a go-slow approach seems indicated here. If Congress does manage to approve this conditional repeal, then the courts can avoid making further decisions – and courts typically like to stay out of these issues, especially when a solution is already being worked out in the other branches of government.

Remember, though, that the repeal is conditional, even if this law does get through Congress in the lame-duck session (thought by many pundits to be unlikely). Although the certifications required for the law to become history are generally expected, that’s not a sure thing, either.

What if the law isn’t repealed? Are we headed for the Supreme Court?

Maybe. If the Administration’s appeal to the Ninth Circuit ultimately isn’t successful, it might decide to simply stop there, and not ask the Supreme Court to take the case. That decision would be contrary to Obama’s repeated (and debatable) claim that all laws must be defended, but he might be willing to reverse himself if the Department of Defense study, due on December 1, shows that the policy can be scrapped without impairing military readiness.

If the case does get to the Supreme Court, prospects aren’t good given the Court’s deference to Congress in military matters.

Are there any other options?

Obama could issue a “stop-loss” order, forbidding the separation of LGBT service members during this time of national emergency. But that would only be good as long as the emergency lasts – basically, until reservists are no longer being called up involuntarily – or until the Administration (which might be the next President) rescinds it.

This is at best a temporary solution, and one that Obama has resisted so far. But it might start to look more appealing, at least as a way to buy some time.

———-

We shouldn’t be in this situation. DADT should be history already. Obama, not wanting to repeat the errors of the Clinton Administration in trying to integrate LGBT troops into the military, for now seems to have erred on the other side. If DADT is ultimately repealed, all of this will one day be fodder for political historians only. But if not….

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: http://wordinedgewise.org.
  1. Sporty_g
    October 21st, 2010 at 12:43 | #1

    Sadly, I believe that the window for Congressional repeal of DADT has already passed. The Administration is a Lame Duck for the next 2 years and the current lame duck Congress has no reason to do anything for any of the constituents that are voting them out of office. The New incomming congress will certainly not take the issue up, because they are being voted in on a “jobs and economy wave” and to repeal the perceived mistakes of the last congress. Face it, this is going to be in the courts for years and only IF by some remarkable stroke of divine intervention, should the Supreme Court agree with Judge Phillips ruling, will congress then get into the act to repeal the act and then institute some even more resttictive and ignorant rules… Sadly the entire generation of BABY BOOMERS and Genaration X will have to die off before this will have a chance to be repealed and corrected….not in my lifetime do I expect to see this really happen…

  2. October 21st, 2010 at 17:10 | #2

    I being a member that was discharge for Homosexual admission know first hand what happens to members that come out, But is not only about those that come out. I for one didn’t come out. A friend who new about me turned me in. There is a long story evolved with that. This being said I feel they have already taken the first step, Hundreds or even thousands of gay military members are awaiting what to do. I for one appricate this aritcal and any information that would help us in this time of confusion.

  3. Jay
    October 21st, 2010 at 17:23 | #3

    John, you are much too generous to the Obama administration to refer to their having a “carefully calibrated plan for legislative repeal.” Whatever their plan, it is dead now. McCain is going to filibuster if DADT repeal is brought up during the lame duck session, and there will not be sufficient votes to pass it in the next Congress.

    I suspect, however, that the Supreme Court will overturn DADT, at least if the Ninth Circuit upholds Judge Phillips’ decision. I would expect a 4-4 vote, with Kagan recusing herself. Ginsberg, Kennedy, Breyer, and Sotomayor will declare the law unconstitutional. The four bigots will say it is constitutional. A 4-4 vote will uphold whatever the Ninth Circuit has ruled. Were Kagan brave enough not to recuse herself, it would be a 4-4 vote declaring DADT unconstitutional.

  4. October 21st, 2010 at 17:41 | #4

    Honestly, as I see DADT as a civil rights issue I do not expect the legislative branch to repeal it but instead the judicial.

    If Congress does finish the job, then I am waiting for the Pentagon survey to be completed. It’s the only thing that keeping McCain’s small remaining sliver of credibility alive, as far as I’m concerned. If the Pentagon is able to say, “Okay, we now know how to integrate LGBT into the military effectively,” I cannot see McCain able to back off from it.

  5. October 22nd, 2010 at 08:02 | #5

    Thomas W Baldwin: Your situation is particularly infuriating, but no one should have to live under the fear of being found out. Crazy. I think that the policy will continue to be chipped away at, as a practical matter (very few discharged during 2009) until it’s finally declared unconstitutional or repealed.

  6. ps2os2
    November 5th, 2010 at 23:55 | #6

    I am all for gays in the military.
    Having said that I was reading in some online lawyers magazine.
    It sited numbers that will disappoint everyone. I do not remember the exact numbers (who ever has the numbers please pipe up).
    The ninth circut court has the worst record of all the circut courts for being overturned by the Supreme Court. I want to say 80-90 percent of the cases it passes up to the suprene court gets overturned.
    What is probably germaine to this is that the 9th circut court covers all of the west coast and a fairly sizable chunck of the US population and so it has the most cases.
    So ? Well if the case history follows the US Supreme Court will probably over rule it.
    That means back to square one and if the Supreme Court is anything like the last 50 or so sessions once they rule on something they will not revisit it for a LONG time probably 100 years.

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