Court: U.S. must stop enforcing 'don't ask, don't tell'

LOS ANGELES — A federal appeals court issued a ruling Wednesday that ends enforcement of the law banning openly gay people from serving in the military, citing the Obama administration's recent determination that gays and lesbians have suffered a history of discrimination.

The statute known as "don't ask, don't tell" was ruled unconstitutional by U.S. District Judge Virginia Phillips in September, and a ban on its enforcement was imposed a month later. The U.S. 9th Circuit Court of Appeals stayed Phillips' ruling, though, while it was being appealed and to allow the Defense Department time to prepare for integrating gays into the armed services.

A three-judge panel of the appeals court lifted that stay in a two-page order Wednesday, granting a motion brought by the Log Cabin Republicans, a gay-rights advocacy group that sued the federal government over "don't ask, don't tell" seven years ago.

The 9th Circuit order signed by Chief Judge Alex Kozinski and Judges Kim McLane Wardlaw and Richard Paez, two appointees of President Clinton, cited recent changes in administration policy calling for "heightened scrutiny" of laws that discriminate on the basis of sexual orientation, such as the Defense of Marriage Act, which deprives same-sex married couples of federal benefits.

Congress repealed the "don't ask" policy last year but called for a lengthy process of preparation, training and certification before ending it. While the government has significantly narrowed enforcement, some discharges continued. And while the Obama administration had advocated the congressional repeal, it had asked the court to keep the stay in place until the policy could be ended in an orderly fashion.

Gay-rights groups applauded the 9th Circuit action, while opponents of gays in the military called the decision a capitulation to an administration that is "letting down the troops."

Dan Woods, who represented the Log Cabin Republicans, said: "People no longer should have to wait for the politicians and the bureaucrats to certify that the military is ready for repeal."

A Department of Justice spokeswoman said, "We're reviewing the ruling," and had no comment on whether the department would appeal the decision.

Although the stay is lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government's appeal of the lower court's decision is valid. But it's unclear whether the Pentagon will pursue the appeal, since defense officials have said they'll stop enforcing the ban.

Defense officials said the chiefs of the military services are scheduled to submit their recommendations on the repeal to Defense Secretary Leon Panetta on Friday. As soon as the Pentagon certifies that repealing the ban will have no effect on military readiness, the military has 60 days to implement repeal.

Officials said they believe the ban could be fully lifted by the end of September. The services have been training their forces on the new law for the past several months. The Navy, Air Force and Marine Corps are largely done with the training, and the Army is on track to finish active-duty training by July 15.

Organizations that represent gay military members and veterans cautioned those on active duty or hoping to enlist against rushing to declare their sexual orientation until the government declares that it intends to abide by the ruling. During the eight-day period last fall before the 9th Circuit put Phillips' injunction prohibiting enforcement of "don't ask, don't tell" on hold, several of the estimated 14,000 veterans who had been discharged under the policy unsuccessfully tried to re-enlist.

"As the news goes out over the wire, troops will see again, as they did last fall, that 'DADT is dead,' " said an Air Force officer who co-founded a gay service-member support group called OutServe and asked not to be identified by name for fear of being discharged. "More gay troops will think this is over; straight soldiers will inadvertently 'out' their friends. Since most of the troops have been trained, the best course is to let the decision stand."

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said his group has a load of about 40 cases involving service members who are under investigation for being gay or lesbian.

Local activists welcomed the ruling. "It's nice to have somebody taking action," said retired Col. Margarethe Cammermeyer, of Whidbey Island. "We've been dillydallying since September. If the military won't act expeditiously, the courts will. I'm delighted the court has stepped in."

Cammermeyer successfully challenged her discharge from the Washington State National Guard in 1992, after she had declared she was a lesbian. The court's ruling should be a helpful "nudge" to the government to formally repeal the policy, she said.

"It's very significant. It's a judicial end to 'don't ask, don't tell,' " said Alan Steinman, a gay retired rear admiral for the Coast Guard now living in Olympia. "The real question is if the government will appeal."

Steinman and Cammermeyer said several gay service members had been discharged recently.

Steinman cited a Pentagon survey last year that reported about 70 percent of all troops said they knew someone who was gay, and 90 percent said they didn't care.

A Joint Base Lewis-McChord spokeswoman declined to comment on the ruling, referring questions to the Department of Defense.

Elaine Donnelly, president of the Michigan-based Center for Military Readiness that claims to advocate for "sound military personnel policies," said the Obama administration was overstepping its authority in unilaterally declaring laws defining rights on the basis of sexual orientation as unconstitutional. "To say anything involving the phrase 'sexual orientation' becomes a special case with special rights, that is a step way too far," she said.

Compiled from The Los Angeles Times, The New York Times and The Associated Press. Seattle Times staff reporter Jeff Hodson contributed to this report.