U.S. District Judge Virginia Phillips issued an injunction Oct. 12 ordering the U.S. military to "immediately" suspend enforcement of the policy, which prevents homosexuals from serving openly. Phillips, a nominee of President Clinton, ordered the military to "discontinue any investigation, or discharge, separation, or other proceeding" involving military personnel who may be in violation of the law. The injunction was handed down one month after Phillips issued a decision calling the policy unconstitutional.
If the Justice Department does not file an appeal, the policy -- adopted by Congress under Clinton in 1993 -- will end for good. Congress also could take up the matter in a lame duck session after the November election, although Republicans successfully blocked a Senate attempt in September to overturn the policy.
The ruling puts Obama in a corner. He opposes the law, and many Democrats in the House and Senate are encouraging the Justice Department not to file an appeal. However, the Justice Department is the organization with the duty to defend the law. CNN reported that the Justice Department likely will file an appeal, perhaps within a day or two.
"We are greatly concerned about the impact will have on religious liberty in the military," Chaplain (Col.) Keith Travis, chaplain team leader for the North American Mission Board, told Baptist Press. Travis is retired from the U.S. Army. "In order to best serve soldiers, our chaplains need to be able to practice their faith freely. Under this order, there's a question as to whether our chaplains would be able to offer the full counsel of Scripture to soldiers who seek their guidance. We don't believe Judge Phillips has jurisdiction over this and if this order is appealed, it most likely won't hold up. The question now is whether the Obama administration will seek to appeal or not."
Travis was one of 60-plus chaplains who signed a letter to Obama and Defense Secretary Robert Gates urging them not to reverse the policy.
"Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale," the chaplains' letter states. "Similarly, making orthodox Christians -- both chaplains and servicemen -- into second-class Soldiers, Sailors, Airmen, or Marines whose sincerely held religious beliefs are comparable to racism cannot help recruitment or retention."
An appeal would first go to the U.S. Ninth Circuit Court of Appeals, and then to the U.S. Supreme Court. The homosexual group Log Cabin Republicans filed the suit.
A Justice Department spokesperson said the department is reviewing the ruling. It would be unusual if an appeal is not filed, particularly after the Justice Department filed an appeal Oct. 12 defending the Defense of Marriage Act -- another law Obama opposes. The lack of an appeal also would be unusual after the Justice Department filed a rather strongly worded brief Sept. 23 urging Phillips not to issue an injunction. In that 14-page brief, the department argued that issuing an injunction would "effectively overrule the decisions of numerous other circuits that have upheld DADT" and would "unjustifiably elevate this Court, and ultimately the Ninth Circuit, to a status of first among equals." The brief also expressed concern over the "effect such an abrupt change might have on the military's operations," particularly "when the military is engaged in combat operations and other demanding military activities around the globe."
Defense Secretary Robert Gates also criticized the ruling.
"I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training," Gates said, according to the Associated Press. "It has enormous consequences for our troops."
Elaine Donnelly, president of the Center for Military Readiness, which supports the policy, said the Justice Department has an obligation to appeal.
"The district court order purporting to govern the military worldwide is so irregular and extreme, even the controversial Court of Appeals for the Ninth Circuit might reject it," Donnelly said in a statement. "The Supreme Court certainly will.... President Obama must not surrender constitutional powers to the courts for reasons of political expediency, particularly when the Defense Department and Congress are in the midst of an ongoing review of the consequences of repealing the 1993 law."
The military is currently in the midst of conducting a survey of military personnel worldwide as to their views of the law. In August, General James Conway, the Marine Corps Commandant and a member of the Joint Chiefs of Staff, said privacy issues should be considered when reviewing the law.
"I can tell you that an overwhelming majority would like not to be roomed with a person who is openly homosexual," Conway said at a press conference.
The man who will replace the retiring Conway, James Amos, also supports the current policy and has said he is concerned over the disruption to unit cohesion if it is reversed. Of the six members of the Joint Chiefs of Staff, four have expressed concern over reversing the policy.
The 1993 law passed by Congress mentioned privacy concerns as one reason homosexuals should not be permitted to serve openly. It said "there is no constitutional right to serve in the armed forces" and that the policy is necessary because "living conditions and working conditions" in the military -- particularly in combat -- "are often spartan, primitive, and characterized by forced intimacy with little or no privacy." It further said, "The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service."
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, criticized Phillips' initial ruling in September.
"She clearly has no understanding of the military and the special requirements of the military," Land said. "The notion that she knows better than generals, officers and admirals who have been serving their country for 30 years or more is ludicrous on its face."
Michael Foust is an assistant editor of Baptist Press.
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