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Where we stand on “Don’t Ask, Don’t Tell” according to Culhane

Law Professor John Culhane

Professor of Law, Widener University 365gay.com contributor John Culhane updates us on where, exactly, things stand in the DADT mess. It is, of course, subject to change at any moment…

How long must I continue writing about “Don’t Ask, Don’t Tell”?

Don’t ask.

It’s hard to see this drama ending any time soon, and much of what one can write about it, from the legal perspective, is speculative and ever-changing. But this isn’t a subject I can ignore for this week’s column – there have been too many important policy and legal developments.

So let’s try to walk through what’s going on, and what might be expected. Much of what follows is necessarily speculative.

Since Judge Virginia Phillips’s decision refusing to stay the injunction was just overruled by the Ninth Circuit, where are we? Is DADT enforceable again?

Yes, even though the Department of Defense hasn’t spoken yet. During the past few days, we’ve seen dramatic evidence of the effect of the lower court’s ruling. In an inspired piece of activism, gay and lesbian activists have shown up at recruiting centers and tried to enlist. As reported here, they were initially turned away. In the wake of Judge Phillips’s decision, though, the Defense Department’s general counsel stated that compliance with the law required that these recruits be accepted. Of course, Dan Choi – now too old to be a Marine, apparently – has enlisted in the Army.

Is this situation likely to change?

It’s just about certain to change. Since the federal appellate court (the Ninth Circuit) has stayed the injunction against enforcement, expect a statement to issue almost instantly that will once again prevent enlistment of openly gay and lesbian soldiers. (In fact, I wouldn’t be surprised if that’s happened by the time you read this.)

But whether the stay will remain in effect for long is another matter entirely. The court issued a “mini-stay,” giving the other side (Log Cabin Republicans) until October 25 to file a response. Then it will decide whether to issue a longer stay.

Courts apply several factors in deciding whether to stay a decision pending appeal, including whether the party seeking the stay is likely to ultimately succeed on the merits of the case, and where the danger of irreparable harm, if any, lies.

Are there other factors that could affect the appellate court’s decision whether to issue the longer-term stay?

Yes. In this case, as in the Prop 8 case, judges are keenly aware of the effect of changing the status quo. In the Prop 8 case, the judges might have one eye on the consequences of allowing thousands of same-sex couples to marry, and then having that right taken away if and when the Supreme Court were to uphold the law. We’ve already gone through this once already with marriage equality in California!

Here, of course, the situation is even messier. Openly gay and lesbian people enlisted! Investigations and discharge proceedings were suspended! But since Judge Phillips’s decision was overturned, what now? All of these men and women might be kicked out. Those enlisting could argue, plausibly, that they can’t be punished for speaking while the injunction against the law was in effect, but the hard fact is that the military will now have the information, and might then go looking for other, independent information that could result in investigation and discharge.

In other words, what now look like brave actions in enlisting, or coming out while in the service, could turn out to be costly.

Oh, and one other factor: The Ninth Circuit might be looking over its shoulder at the Supreme Court, which could grant the stay if the appellate court doesn’t.

What about the pending legislation to repeal DADT? How, if at all, will (or should) that figure into what happens in the courts?

This is where the situation gets especially complex, and especially frustrating for the Obama Administration. The judge’s world-wide injunction was an unexpected earthquake, complicating the carefully calibrated plan for legislative repeal, and embarrassing the Administration into having to defend a law that it’s working so hard to get rid of. What arguments will they make on appeal, given that the trial court found that the policy violated LGBT service members’ fundamental rights?

From the judicial side of this equation, a go-slow approach seems indicated here. If Congress does manage to approve this conditional repeal, then the courts can avoid making further decisions – and courts typically like to stay out of these issues, especially when a solution is already being worked out in the other branches of government.

Remember, though, that the repeal is conditional, even if this law does get through Congress in the lame-duck session (thought by many pundits to be unlikely). Although the certifications required for the law to become history are generally expected, that’s not a sure thing, either.

What if the law isn’t repealed? Are we headed for the Supreme Court?

Maybe. If the Administration’s appeal to the Ninth Circuit ultimately isn’t successful, it might decide to simply stop there, and not ask the Supreme Court to take the case. That decision would be contrary to Obama’s repeated (and debatable) claim that all laws must be defended, but he might be willing to reverse himself if the Department of Defense study, due on December 1, shows that the policy can be scrapped without impairing military readiness.

If the case does get to the Supreme Court, prospects aren’t good given the Court’s deference to Congress in military matters.

Are there any other options?

Obama could issue a “stop-loss” order, forbidding the separation of LGBT service members during this time of national emergency. But that would only be good as long as the emergency lasts – basically, until reservists are no longer being called up involuntarily – or until the Administration (which might be the next President) rescinds it.

This is at best a temporary solution, and one that Obama has resisted so far. But it might start to look more appealing, at least as a way to buy some time.

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We shouldn’t be in this situation. DADT should be history already. Obama, not wanting to repeat the errors of the Clinton Administration in trying to integrate LGBT troops into the military, for now seems to have erred on the other side. If DADT is ultimately repealed, all of this will one day be fodder for political historians only. But if not….

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