‘Don’t Ask, Don’t Tell’ Will Go On Indefinitely, Court Decides


The Ninth Circuit Court of Appeals has given the Pentagon permission to continue discharging soldiers under “Don’t Ask, Don’t Tell” the law’s constitutionality is appealed, which could take months or even years to determine.

In September, U.S. District Judge Virginia Philips had ruled that the law was unconstitutional, and ruled its implementation had to stop immediately. When the she denied the administration’s desire for a stay pending appeal, the Pentagon sent out a directive saying it would accept the recruitment of openly gay enlistees, and the subject of this week’s Voice cover story, former Lieutenant Dan Choi, signed up to re-enter the Army.

But the Ninth Circuit seems to have put a stop to that process.

Although the Pentagon has not officially announced a change to its recruitment policy,
Choi tells the Voice he has been told that his enlistment papers have been

According to the San Francisco Chronicle, two judges of the three judge Ninth Circuit appeals panel wrote that the Pentagon can continue to discharge soldiers for now to guarantee “the public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen.” The Chronicle writes that “Judge William Fletcher dissented, saying discharges of openly gay and lesbian personnel should be barred
during the appeal.”

The appeal will not even be scheduled until March 2011, and a hearing might not occur until this time next year, at which point it will be heard by a different three judge panel. The Log Cabin Republicans, who first challenged the law’s constitutionality in 2004, will ask the Supreme Court to uphold Philips’s stay pending appeal, which is highly unlikely.

Lt. Dan Choi still wants to re-enlist, and is waiting to hear of an official change in the Pentagon’s recruitment policy.