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|Gay military members cautioned as ‘Don’t Ask, Don’t Tell’ ends|
|by Lisa Keen|
|September 16, 2011 00:00|
Sept. 20 marks the end of an era for gay men and lesbians in the U.S. military, and the non-profit Servicemembers Legal Defense Network is trying to prepare gay active duty service members for the historic change.
Since 1993, the military’s “Don’t Ask, Don’t Tell” policy has banned gay Americans from serving openly in the armed services. The policy will officially end Sept. 20, the day a 60-day review period will have ticked away following certification of military readiness to implement repeal.
Not surprisingly, some organizations, including SLDN, plan to celebrate the end of the 18-year-old ban. Two such events — a Retreat Ceremony on Sept. 19 and Repeal Day Celebration on Sept. 20 — are scheduled for Atlanta.
“Many service members want to attend these celebrations, and some might want to speak at them,” notes the SLDN website, explaining that “no special rules apply to attendance at or participation in such events.”
But SLDN did warn gay service members 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 cautioned service members not to wear their uniforms to any event that is partisan in nature.
SLDN will continue to provide legal support to gay soldiers after the repeal date, focusing on discrimination that they may face after coming out. The organization also says it will work toward improving policies that affect LGBT soldiers.
“Don’t Ask, Don’t Tell” will be off the books next week, 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.
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 “Don’t Ask, Don’t Tell” 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,” noted Woods.
And if the 9th Circuit panel does not affirm a district court decision finding DADT unconstitutional, said Woods, “the government will be completely unconstrained in its ability to again ban gay service in the military.”
Woods noted 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 situation is that the Department of Justice is urging the federal appeals panel to declare the Log Cabin Republicans v. U.S. lawsuit moot. That lawsuit, which won a powerful decision from U.S. District Court Judge Virginia Phillips last September, helped prompt Congress to finally pass the bill repealing DADT.
Phillips had ordered the military to immediately stop enforcing DADT and, though the 9th Circuit put that order on hold pending appeal of the decision, 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. He 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.
Log Cabin’s attorney Woods also noted that affirming Judge Phillips’ ruling would remedy “collateral consequences” caused by DADT. Among those concerns, he said, were 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, individuals discharged under DADT could seek remedies to these collateral forms of discrimination through individual lawsuits. Woods countered 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,” added Woods, “the government is unconstrained and simply might do it again. History might repeat itself.”
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