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|Court order upholds ban on ‘Don’t Ask, Don’t Tell’ discharges|
|by Chris Johnson|
|July 22, 2011 00:00|
A federal appellate court issued an order late July 15 prohibiting the U.S. government from discharging additional service members under “Don’t Ask, Don’t Tell” while allowing recruiters to continue to bar openly gay people from enlisting in the armed forces.
The order from a three-judge panel of the U.S. Ninth Circuit Court of Appeals partially reinstates a stay on an injunction barring the enforcement of “Don’t Ask, Don’t Tell.” The injunction was reissued by the appellate court July 6 after it was first issued by a U.S. district court last year.
“[T]he stay entered November 1, 2010, is reinstated temporarily in all respects except one,” the order states. “The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”
An injunction barring the Pentagon from discharging service members under DADT means prohibiting open gays from enlisting is the only part of the law remaining in effect.
The Ninth Circuit partially reinstated the stay upon request from the Obama administration, which on July 14 requested an emergency stay on the injunction that was issued in the case of Log Cabin Republicans v. United States.
The injunction was first put in place last year by U.S. District Court Judge Virginia Phillips after she determined that “Don’t Ask, Don’t Tell” was unconstitutional, but only lasted for eight days before the Ninth Circuit placed a stay on the order upon request from the U.S. government. The order from the appellate court reversed this decision.
Eileen Lainez, a Pentagon spokesperson, said the Defense Department is “studying the appellate court’s order.”
“The temporary transition that Congress and the President established as a prerequisite to the repeal of [‘Don’t Ask, Don’t Tell’] has been underway for several months and we are nearing presenting certification for decision to the president, the secretary of defense and the chairman of the Joint Chiefs of Staff in the next few weeks,” she added.
Alex Nicholson, executive director of Servicemembers United and sole named veteran plaintiff in the lawsuit, said the Ninth Circuit “did the right thing” in rejecting the U.S. government’s request to reinstate “Don’t Ask, Don’t Tell” in full.
Under the repeal law signed in December, “Don’t Ask, Don’t Tell” will be off the books when 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staff certify the U.S. military is ready for open service. Troops have been participating in training since February to prepare for “Don’t Ask, Don’t Tell,” but certification has yet to take place.
The Ninth Circuit says it’s placing the partial stay because of new information the U.S. government presented this week.
The court says it was previously not informed that only one service member had been discharged under DADT since the passage of repeal legislation.
Nor did it know that the service chiefs had provided written advice to Pentagon leadership on the status of repeal or that certification is expected to happen “in a matter of weeks, by the end of July or early in August.”
Top photo: Alex Nicholson, a plaintiff in the lawsuit to overturn ‘Don’t Ask Don’t Tell,’ said the Ninth Circuit ‘did the right thing’ in rejecting the U.S. government’s request to reinstate the policy in full. (Publicity photo)
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