Back-and-Forth on 'Don't Ask' Sows Disruption

By CP Guest Contributor, Wednesday, October 27, 2010

For more than two centuries, they were kept out, given the circumstances unique from civilian life. Then, for a few days, they were welcomed in. Now they are out again.

Such is the narrative, still unfolding, of the protocol on homosexuals in the U.S. military. Days after District Court Judge Virginia Phillips ruled that the military must immediately cease enforcement worldwide of the "Don't Ask, Don't Tell" policy prohibiting open homosexuals from serving in the military, the Ninth Circuit Court of Appeals stayed the decision, granting a Justice Department request that the policy remain in force while the case works its way through the courts. This is welcome news. The military returns, at least temporarily, to its 17-year-old policy.

But the dramatic shifts in protocol are wreaking havoc on the services. Soon after Judge Phillips took congressional powers into her own hands by opening up the military to homosexuals, the Pentagon ordered recruiters to begin admitting open homosexuals. Several applied and gained entrance.

Now the military faces the dilemma of what to do about the out-in-the-open homosexuals in the ranks-once barred, then admitted, now barred again. This only causes disruption. The Justice Department, for its own reasons, even conceded that point in requesting the stay. The back-and-forth games with the armed services are sowing confusion in the ranks and unnecessarily diverting their attention from their chief task-defending freedom here and abroad-to a social engineering experiment.

Some fear that the clash between judge and Justice Department could ultimately serve the interests of those pursuing full congressional repeal of the 1993 statute. The few open homosexual service members now have a foothold, they caution.

Signed into the books by President Clinton, the law commonly referred to as "Don't Ask, Don't Tell" reinforces military protocol from its earliest days that "the prohibition on homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service."

In requesting the stay, the Justice Department stated that Judge Phillips' injunction "is at odds with basic principles of judicial restraint requiring courts to limit injunctive relief to the parties before the court, and is contrary to decisions of other courts, which have sustained the constitutionality of the statute."

It was careful to add in no uncertain terms, however, where the administration stands on repeal. "The Administration does not support § 654 [the 1993 law] as a matter of policy and strongly believes that Congress should repeal it," reads page one of the stay request. "The President strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff," reads the next page. The general idea, reinforced throughout, is that repeal is coming. Just give Congress a little time.

Fortunately, there remains significant opposition to changing 200 years of military protocol. That includes four of the six members of the Joint Chiefs of Staff-Army, Navy, Air Force, and Marine Corps-and more than 1,100 retired Flag & General Officers.

And fortunately, congressional attempts at repeal have been rebuffed thus far. While the House has passed a defense bill with repeal included, the Senate fell short in September. Prospects look similarly dim for repeal during a lame duck session. But, then again, almost anything can happen in Washington. On the judicial side, the Ninth Circuit could be next to rule on the merits of the policy, setting up a battle that comes to a head at the Supreme Court. Stay tuned.