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U.S.: Military gay ban ends Sept. 20 (UPDATE)

UPDATE 4:31 p.m.

The 1993 law that has barred gays and lesbians from serving openly in the nation’s military services will be repealed effective Sept. 20, the Obama Administration said in papers filed Friday afternoon with the Ninth Circuit Court in San Francisco and released in Washington.  A series of documents (found here) started the running of a 60-day clock, giving the armed forces the added time specified by Congress to actually implement the repeal of the “don’t ask/don’t tell” policy.  When the 60 days are up, repeal will be automatic.  (UPDATED 5:36 p.m.   A statement by President Obama is here.)

The key document in the package was labeled “CERTIFICATION.”  It contained the signatures of President Obama, Defense Secretary Leon E. Panetta, and Joint Chiefs of Staff Chairman Adm. Michael Mullen, formally certifying to Congress that the conditions set for the policy’s repeal to go into effect had been met.  The declarations told Congress that repeal will be “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”   Congress had insisted on those assurances, before it would permit repeal to actually occur.

In practical terms, those formal assurances simply meant that the military could now handle the open service of gays and lesbians without harming the military’s capacity to carry out its missions.  This would include admissions in public by gay and lesbian troops that they are homosexuals, and that they have gay and lesbian partners with whom they share intimate lives.   It also would mean that, when a gay and lesbian individual shows up to enlist in one of the services, they need not hide the fact that they are homosexuals.

The other documents released Friday were a cover letter by Justice Department lawyers, noting that the 60-day period will end on Sept. 20, along with copies of presidential letters sent to the leaders of defense affairs committees in Congress, sending the “certification.”  That, too, satisfied a requirement of the repeal law.  (UPDATE:  Statements about Friday’s actions from Secretary Panetta and Adm. Mullen are here and here.)

As of Friday afternoon, the “don’t ask/don’t tell” policy is nominally still in effect, but an existing order by the Ninth Circuit bars the Pentagon and field commanders from discharging, punishing or investigating any member of the military for allegedly violating the policy.   The Obama Administration, however, has formally asked the Ninth Circuit Court to lift that restriction, so that the policy would remain fully in effect during the final 60 days before actual repeal occurs (now due on Sept. 20).  It is not known at this point when the Circuit Court will act on that request.  It called for special briefs on whether it should wipe out the restrictions, and those papers have now been filed; the final one was filed by the Administration earlier Friday afternoon (there is a link below to that document).

The government lawyers have told the Ninth Circuit that only one individual has actually been discharged under the policy since Congress approved the repeal law last December, and that that individual had asked to have the discharge expedited.

Besides asking the Ninth Circuit to let the full policy remain in effect, in order to give the military the full control over the final repeal implementation steps, the Administration asked that court to cancel a Sept. 1 hearing it has scheduled.  That hearing will focus on whether the 1993 law, without regard to the new repeal act, was unconstitutional — as U.S. District Judge Virginia Phillips of Riverside, Calif., had concluded last year.  Judge Phillips’ ruling is under review by the Ninth Circuit in the case of Log Cabin Republicans v. Panetta (Circuit docket 10-56634).

Even after the repeal takes effect, gays and lesbians will not be entitled to full legal equality within the services, because a provision of the repeal law makes clear that the so-called Defense of Marriage Act remains in full effect within the military.   Under that act, federal benefits for married couples– including military benefits for spouses — can only go to couples who are of the same sex.  That denial would apply to a military couple even if they are legally married under the laws of a state.  DOMA, as it is often called, is under continuing constitutional challenges in a variety of federal courts around the country, and the Obama Administration is no longer defending its validity; the House of Representatives’ Republican majority has taken up that defense.

NOTE: The following post appeared earlier Friday afternoon:

Even as a White House meeting got underway Friday afternoon on steps to bring about the end of the 18-year-old ban on gays and lesbians from serving openly in the military, the Obama Administration told the Ninth Circuit Court that the process was “on the verge of completion.”  In a filing urging the Circuit Court to leave it to the military to take the final steps, government lawyers said they would provide further information after the White House session is over.   These developments were anticipated in this post last night.

The new filing said that, even after repeal of the policy takes effect, sometime this fall, those who were discharged from the military under the policy will still be available to go forward with claims that their removal from the service was unconstitutional.  The Circuit Court, the government lawyers said, should not be going forward with a case involving the constitutionality of the overall policy, since that ban will end when the new federal law repealing it takes effect.

Recommended Citation: Lyle Denniston, U.S.: Military gay ban ends Sept. 20 (UPDATE), SCOTUSblog (Jul. 22, 2011, 2:11 PM),