Note to readers:  Because Friday’s developments on the “don’t ask/don’t tell” policy were varied and somewhat complex, this new post covers only what the Ninth Circuit Court did in response to the Obama Administration’s legal maneuvering.   A separate post earlier today outlined the timetable for repeal of the policy, and a post last night anticipated some of the developments and provided background.

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Shortly after the Obama Administration on Friday afternoon released the timetable for repeal of the “don’t ask/don’t tell” policy against gays and lesbians in the military, the Ninth Circuit Court issued a new order specifying  that, during the remaining 60 days that the policy operates, the military may not discharge, punish or investigate any service member under the policy.  Otherwise, the policy will not be disturbed.

This was less than the Obama Administration had been seeking; it had wanted no court-imposed limits on the policy, so that the military would have complete control over how the process of implementing the repeal would go.  Technically, the Administration could now go on to the Supreme Court in a bid to remove all court restraints on military discretion under the policy; it is unknown whether that option is even being pondered.

Besides shielding gays and lesbians from the more threatening means of enforcing the policy, the Circuit Court’s new order turned down the Administration’s request to cancel a hearing set for Sept. 1 at which the three-judge Circuit panel will weigh the constitutionality of “don’t ask/don’t tell” as it existed prior to the repeal law’s enactment.  This was a clear sign that the court was intent on maintaining control of the judicial aspects of the ongoing controversy over the policy.

Pentagon officials and the Justice Department have been pressing the argument that, until repeal actually occurs, there should be what it called an “orderly process” for implementing the repeal.  The phrase “orderly process” translated into an argument that the military alone, not the courts, should be in charge of bringing about the actual end of the policy.

Even though the military had discharged only a single homosexual under the policy since December, when Congress passed the repeal law, military commanders had grown resentful of any interference by the courts with any aspect of military operations under the policy.   Military commanders would do a better job of ending the policy, the argument went, if change came from “within the organization” rather than from outside — that is, the courts.  That, the government added, was what Congress had mandated, and the courts should defer to that.

In response on Friday, the Circuit Court essentially put matters back where they had stood one week earlier.  At that time, the  panel allowed the military to resume enforcement of the policy so long as no discharges, penalties or investigations were carried out for alleged violations.   Nominally, the court had reconsidered its stance, but actually came out at the same place.

The new order acknowledged that, earlier in the day, President Obama and Pentagon leaders had taken the formal steps to bring about actual repeal by Sept. 20.  But then it maintained the limits on enforcement during the period up to that date and signaled its intent to go ahead with the Sept. 1 hearing.

The Log Cabin Republicans, the gay rights advocacy group that had brought the constitutional challenge to “don’t ask/don’t tell,” had complained to the Circuit Court this month that the constitutional rights of gays and lesbians in the military “are not a ping-pong ball to be paddled back and forth” while the court case is pending in the Ninth Circuit.

But the reality has been that, when the month of July opened, the policy was in full force, then on July 6 enforcement was totally blocked, then on July 15 it was back in force except for discharges, penalties and investigations, and then, on Friday, that circumstance was in essence maintained.

Although the new order did not mention it, it appeared that it would work to discourage gays and lesbians who may have been thinking about enlisting in the military, because the core policy — serving openly as a homosexual in uniform is banned — is back in effect, even if the most effective means of enforcing it are not.

If the Administration should now go on to the Supreme Court to try to take back full control of the “orderly process” of repeal, the state of enforcement might well change again.

If that option is not pursued, there will be two tracks along which the policy will be traveling in coming weeks: the military will use the time up to Sept. 20 to accomplish whatever changes it needs to make, while the Justice Department and lawyers for the challengers to the existing policy will be getting ready to attend a Circuit Court hearing on Sept. 1 with the outside possibility that the Circuit Court could rule by the repeal date.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, New order: No gay discharges allowed, SCOTUSblog (Jul. 22, 2011, 9:29 PM), https://www.scotusblog.com/2011/07/no-gay-discharges-allowed/