The panel of Ninth Circuit judges voted 2-1 to continue indefinitely its Oct. 20 temporary stay of judge Virginia Phillips' Oct. 12 ruling that invalidated the 1993 federal law and ordered its enforcement to cease worldwide.
The appellate court's extension of the stay means homosexuals still may not enlist in the armed forces and may be discharged if they already are in the military. "Don't Ask, Don't Tell," as the 17-year-old law is known, prevents homosexuals from serving openly but also prohibits military commanders from asking service members if they are homosexual or about their "sexual orientation."
Supporters of "Don't Ask, Don't Tell" welcomed the decision by what is considered to be the most liberal of the federal appeals courts.
"American citizens should always be grateful when a temporary attack of sanity afflicts the U.S. Ninth Circuit Court of Appeals," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. "It is beyond reason to have a judge who never served in the military arbitrarily decide to use our armed forces for the purpose of social engineering.
"I join millions of other Americans in being grateful the Ninth Circuit has kept our elected representatives' policy in place until it can be further reviewed by our elected representatives and the Supreme Court," Land said.
Supporters of "Don't Ask, Don't Tell" believe its reversal will curtail the religious liberty of those in the military whose opposition to homosexual conduct is based on Scripture. They also say it will undermine military readiness, cohesion, privacy, recruitment and retention.
Congress is considering legislation to rescind "Don't Ask, Don't Tell." The legal case is expected to go eventually to the U.S. Supreme Court.
President Obama, Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Michael Mullen all support overturning "Don't Ask, Don't Tell," but the Department of Justice urged the Ninth Circuit to block enforcement of Phillips' order because it would cause a major disruption in the process of changing the policy.
Log Cabin Republicans, the homosexual activist organization challenging the law, criticized Obama's handling of the issue.
"The president claims to want to see 'Don't Ask, Don't Tell' ended," said Clarke Cooper, executive director of Log Cabin Republicans. "It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns."
The Senate is expected to attempt to overturn "Don't Ask, Don't Tell" during a post-election, lame-duck session. The House of Representatives approved such legislation with a 234-194 vote in May.
The Ninth Circuit majority, consisting of two appointees by President Reagan, said there were three reasons it chose to extend the stay:
-- Congressional actions carry the presumption of constitutionality, tipping the scales in favor of the government when it requests a stay.
-- Courts should be careful about overruling Congress regarding the armed services, since the legislature has authority over that responsibility of the federal government.
-- Phillips' decision appears to conflict with opinions by at least four Circuit Courts of Appeals: The First, Second, Fourth and Eighth.
Judges Diarmuid O'Scannlain and Stephen Trott said the Department of Justice's contentions that "the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military -- if that is what is to happen -- strongly militates in favor of a stay."
Judge William Fletcher, who was appointed by President Clinton, dissented, although he said he would extend the stay in most respects. Fletcher said he would continue Phillips' order barring the military from discharging any homosexual member.
Gates implemented a comprehensive review of "Don't Ask, Don't Tell" in March, but defenders of the policy have charged subsequent actions by Congress and the Obama administration demonstrate the Pentagon's study is meaningless.
As part of the review, the Pentagon elicited feedback from military personnel and their families. Gates said in April he believes "in the strongest possible terms" that the review should be complete prior to any legislative action. Mullen and the chiefs of the Army, Navy, Air Force and Marines also said Congress should not act until the review of the current policy has been completed.
Congress began acting in May, however, only three days after the White House and Democratic legislative leaders reached an agreement on a way to enact repeal of the ban. Under the agreement and subsequent legislation, repeal would not go into effect until the Pentagon has finished a study of the issue Dec. 1.
Senate leadership sought to bring to the floor in September a proposal to overturn "Don't Ask, Don't Tell" but fell short. The vote was 56-43 in favor of invoking cloture, which overcomes a delaying tactic known as a filibuster and brings legislation up for consideration. Cloture, however, requires 60 votes. Three Democrats voted with 40 Republicans, preventing cloture.
Obama promised during the 2008 election campaign to overturn the military ban. During his State of the Union speech in January, the president said he would work for repeal this year.
Chaplain (Col.) Keith Travis, chaplain team leader for the Southern Baptist Convention's North American Mission Board, was among the 60-plus chaplains who signed a letter to Obama and 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."
The case before the Ninth Circuit Court, which is based in San Francisco, is Log Cabin Republicans v. USA.
Tom Strode is Washington bureau chief for Baptist Press.
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