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Military ban on gays ends (UPDATED)

UPDATED Wednesday p.m.  In the wake of the repeal of the “don’t ask/don’t tell” law, the Obama Administration on Tuesday urged the Ninth Circuit Court to declare as moot the pending constitutional challenge to that policy.  In addition, the Administration urged the Circuit Court to vacate the ruling a year ago by U.S.  District Judge Virginia A. Phillips  of Riverside, Calif.,  striking down the policy.  The challengers have received the remedy they sought, because of repeal,  and there is no real chance that Congress would move to re-establish the ban, the government argued.  The  new filings are here.


The military’s long-standing ban on gay and lesbian troops serving openly in the ranks came to an end Tuesday, as Pentagon officials passed the word to all commands.  Sept. 20 was set as the end date after President Obama and Defense Secretary Leon Panetta in July officially informed Congress that the services were ready to implement Congress’s repeal of the “don’t ask/don’t tell” law.   This memo on repeal was released by the Pentagon early Tuesday morning.  The text of the repeal law can be read here.

The constitutionality of the ban remains under review in the Ninth Circuit Court, but that case may now be declared moot.  A three-judge panel held a hearing Sept. 1 on the case, Log Cabin Republicans v. Panetta (Circuit docket 10-56634), but has yet to rule.  Under an order by that Court on July 22, however, the military has been barred temporarily from investigating, discharging or punishing any serviceman or -woman under the ban.

The ban, under which thousands of gays and lesbians have been discharged, originated in controversy, and ended amid new wrangling between some in Congress and the Pentagon.   President Bill Clinton had wanted to end the military ban as he entered office in 1993, but that ran into stiff resistance, politically and within the military.   That led to a compromise in the passage of the “don’t ask/don’t tell” law.   Gays and lesbians could continue to serve, but only as long as they kept their sexual identities secret and did not engage in conduct that would lead to investigation and — as in many cases — discharge for violating the ban.

As the repeal law took effect at 12:01 a.m. Tuesday, controversy over its end was continuing.  Republican leaders of the House Armed Services Committee had demanded earlier this month that the Pentagon put off the repeal, arguing that the Obama Administration had not fulfilled the requirements that Congress had set for the actual demise of the policy — a claim that the Pentagon has denied.   The Pentagon went ahead with the planned declaration of the plan’s end.

The Pentagon has made clear that service members who were discharged under the policy will now be allowed to seek re-enlistment, but they will not be given priority over other potential enlistees.  The Pentagon has released a new “quick reference guide” on the consequences of the ban’s repeal.

Although other restrictions on gays and lesbians in the service have ended, one significant one remains: same-sex couples, one or both of whom are in the military, will not be allowed to get married on military bases, and, if they do get married elsewhere, spouses will not be entitled to marriage benefits.  That is because the repeal law expressly provides that it does not affect the continuing enforcement of the Defense of Marriage Act, a 1996 law that limits every federal benefit related to marriage to opposite-sex couples.

DOMA is under a variety of constitutional challenges in at least a half-dozen major cases in courts around the country.   The Obama Administration has concluded that the law is unconstitutional, and has refused to continue to defend it in court.  However, the Republican leadership of the House of Representatives has stepped into cases in several courts, to defend the law’s validity.  The constitutional controversy very likely will reach the Supreme Court at some point.  Although there are bills pending in Congress that would repeal DOMA, there appears to be almost no chance that the Republican-controlled House would approve any such measure.

The “don’t ask/don’t tell” repeal law was passed at the end of 2010, when Democrats still controlled both houses of Congress.  It took the military from that time until this past July to complete arrangements, including training of the troops to accept the policy’s end.  After the President and Panetta formally concluded in July that the military was ready, the law specified that the repeal would take effect 60 days later.   That is the event that occurred early Tuesday.

Recommended Citation: Lyle Denniston, Military ban on gays ends (UPDATED), SCOTUSblog (Sep. 20, 2011, 6:52 AM),