The military’s “Don’t Ask, Don’t Tell” policy barring gay and lesbian soldiers from serving openly seems to have been dealt a mortal blow yet again. Legally, it was substantially wounded last year when U.S. Judge Virginia Philips issued an injunction and refused to grant a stay during its appeal, but the Ninth Circuit Court of Appeals allowed the stay as they reconsidered the case. For some strange legal reason (see our conversation yesterday with Metro Weekly’s Chris Geidner) Attorney General Eric Holder chose to appeal Judge Philip’s decision, despite the fact his boss President Obama would sign the law out of existence last December.
But here’s the thing: that signing ceremony simply set in motion yet another slow death march for DADT that, as of this afternoon, hadn’t yet killed it. Nearly seven months later, outgoing Defense Secretary Bob Gates has been preparing to leave his post without certifying DADT’s repeal. It’s still the law of the land.
The courts, as they began to last year, have said: enough.
Curiously, in light of Geidner’s legal observations, it’s obvious that the courts are not just saying “we ordered this almost a year ago, get on with it,” but they have been emboldened by the recent Golinski case. The Ninth Circuit referred to the Department of Justice’s own brief filed just last Friday, which Geidner called “the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people.”
It looks like the Ninth Circuit agreed. From their order:
“in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.
Servicemembers Legal Defense Network is cautious, reportedly telling AMERICAblog, “SLDN again urges service members to NOT come out until we have finality on this matter.”
Even though Obama tried to sign DADT off the books, it looks like the legislative branch beat him to actually bringing equality to LGBT Americans in uniform. Also significant: this ruling which has brought about the end of DADT is in response to a lawsuit originally brought by the Log Cabin Republicans, which many Democratic gay activists were not thrilled about when it was filed. At the end of the road, it’s been Republicans who brought the Marriage Equality Act across the finish line in New York, and who pushed the courts to end DADT.