Delay of gay ruling opposed
on Oct 16, 2010 at 7:20 am
Accusing the Obama Administration of “hypocrisy at its highest levels” for trying to keep in force the “don’t ask/don’t tell” policy that the government opposes and wants ended, a gay-rights group told a federal judge on Friday that maintaining the policy even temporarily will weaken the military services and national security. Using strong and often accusing language on every one of its 12 pages of argument, the group — the Log Cabin Republicans — said the Administration “should be ashamed to be seeking” that effect.  (The document is here.)
On Thursday, the Administration asked U.S. District Judge Virginia A. Phillips in Riverside, CA, to put on hold her Oct. 12 order to the military to stop enforcing everywhere the policy that leads to the discharge of gay service members who openly admit that they are homosexuals. If the judge does not do so by Monday, the government application said, a request for a stay will be filed in the Ninth Circuit Court, where a government appeal is already pending. (A post discussing the stay application and noting the Circuit Court’s planned schedule for the appeal  is here.)
Replying on Friday afternoon, the Log Cabin Republicans criticized the lengthy sworn statement by a high Pentagon official that immediate enforcement of Judge Phillips’ ruling would harm the nation’s military mission, and countered that the opposite is the case. Both President Obama and the Pentagon’s highest military officer had previously said in public that the “don’t ask/don’t tell” policy actually undermines military readiness, the opposition document noted.
Judge Phillips, in her ruling striking down the policy, had concluded that the military itself suspends any discharge of openly gay members when it needs them in one of its operations, and had found that many gay members of the service provide necessary military skills that would be lost if they were forced out of the services.
Stopping enforcement of the policy, the Log Cabin Republicans conended,  “will actually improve morale, readiness, cohesion, and overall military effectiveness.” The “injury” that the government has claimed, the filing said, is “entirely a matter of rewriting handbooks and personnel manuals, developing training and ‘educational’ materials, reassuring serving personnel that their ‘views, concerns, and perspectives’ are valued, and the like.”
In fact, the gay rights group contended, a bar to enforcement of the policy does not require the military to do anything but stop dscriminating. “It does not order the military to redesign its barracks, to retool its pay scales, to re-ordain its chaplains, or any of the other specters raised in the application. The Court’s injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability.”
With Judge Phillips’ order in place, it added, “nothing will change with regard to the composition of the military, the recruitment, training, promotion, demotion, and deplyment of servicemembers, the mission and operation of the armed forces, or anything else that pertains to the important government interest that the military serves.” (emphasis in original)
In contrast to the lack of harm that the opposition filing saw for the military, it argued that continued violation of the constitutional rights of gay service members will do them and their families serious harm. “Every day that the government remains free to implement the Don’t Ask, Don’t Tell policy, Aericans citizens’ constitutional rights are violated,” it argued.
The filing also sought to answer the Administration’s plea that a high-level Pentagon “working group” should be allowed to plan an “orderly” end to the policy. It suggested that the planners have moved slowly, calling the project “ponderous” and with an uncertain outcome. “Homosexual servicemembers,” it asserted, “are fighting and dying today in two wars for their fellow Americans’ constitutional rights; their own constitutioinal rights should not be held hostage to an uncertain bureaucratic process that wans time to develop educational and training materials.”
Moreover, the filng said, the government has known since July 24, 2009, when the challengers’ lawsuit was set for trial, that there was a possibility that the policy would be declared invalid and the military might have to prepare for that outcome. The government waited to set up its review and planning effort until it overlapped with the case’s trial, the document said. And that is not a reason now to delay the final order.
“Nothing in the injunction,” it concluded, “prevents the military from developing all the policies and educational programs it needs to; its ability to do so does not depend on the DADT policy remaining in place.” It blasted the Pentagon’s personnel undersecretary, Clifford L. Stanley, for a statement he supplied this week to the judge, as “shed[ding] crococile ears for the uncertainty that would supposedly hang over ‘our men and women in uniform’ ‘” if the military had to adjust to changing conditions ” ‘on-the-fly'” even as he completely ignored the constitutional rights of those servicemembers.
The document also noted the Pentagon’s asnnouncement after the judge issued her injunction that it would comply with that order and would stop enforcing the policy pending a possible stay. A Pentagon news release on Friday discussing this response can be read here.
