Pentagon shuts down enforcement of gay ban - Army News | News from Afghanistan & Iraq - Army Times

Pentagon shuts down enforcement of gay ban

The Pentagon on Thursday issued a worldwide moratorium on investigations and separations of gay service members under the 17-year-old “don’t ask, don’t tell” policy, complying with the order of a California federal judge who declared unconstitutional the ban on open military service by gays.

The move came two days after Judge Virginia Phillips handed down an injunction ordering the Defense Department to “suspend and discontinue” any proceedings related to the policy.

Simultaneously on Thursday, the Justice Department filed for an emergency stay, or a temporary freeze, of Phillips’ injunction, and said it will appeal her decision.

In a sworn statement submitted along with the appeal shortly after the Pentagon announcement, Clifford Stanley, undersecretary of defense for personnel and readiness, argued strongly for a stay of the injunction while the government’s appeal is heard.

During the appeals process, “the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas,” Stanley said.

“An injunction before the appeal in this case has run its course will place gay and lesbian service members in a position of grave uncertainty,” he said. “If the court’s decision were later reversed, the military would be faced with the question of whether to discharge any service members who have revealed their sexual orientation in reliance on this court’s decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.

“The stakes here are so high, and the potential harm so great, that caution is in order,” Stanley said.

But for now, in the absence of a stay, the Defense Department “will abide by the terms in the court’s ruling, effective as of the time and date of the ruling,” Pentagon spokesman Marine Col. David Lapan said Thursday.

The Pentagon on Thursday informed the judge advocates general for each of the services of the standing injunction and instructed them to advise commanders accordingly.

Advocates for gay service members cautioned against any public statements about their homosexuality. “Service members should not come out. They remain vulnerable, we believe, under ‘don’t ask don’t tell,’” said Trevor Thomas, a spokesman for the Service Members Legal Defense Network, which provides free legal services for gay troops.

Phillips sits on the U.S. District Court for the Central District of California, which covers seven counties. It is part of the 9th Circuit, which covers Alaska, Hawaii, the West Coast states, Arizona, Idaho and Montana.

An appeal of her injunction would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the Supreme Court.

One day after Phillips’ ruling, Defense Secretary Robert Gates said that abruptly ending the military’s “don’t ask, don’t tell” policy would have “enormous consequences” for the troops.

Gates told reporters that the question of whether to repeal the law should be decided by Congress, and only after the Pentagon completes a sweeping study of the issue that is due by Dec. 1. He said he feels strongly that legislation, not a court order, should determine the policy.

Gates has said the purpose of the Pentagon study is not to determine whether to change the law — something he says is probably inevitable but up for Congress to decide. Rather, the study is intended to determine how to best lift the ban without causing serious disruption during wartime.

Phillips declared the law unconstitutional after a two-week nonjury trial in federal court in Riverside, Calif., and indicated she would issue a nationwide injunction. But she asked first for input from Justice Department attorneys and the Log Cabin Republicans, the gay-rights group that filed the lawsuit in 2004 to stop the ban’s enforcement.

The Justice Department also argued that Congress should decide the issue — not her court.

Phillips disagreed, saying the law does not enhance military readiness but instead has a “direct and deleterious effect” on the armed forces by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

After listening to testimony from military officers who have been discharged under the policy, Phillips also said the law violates the free-speech and due process rights of service members.

In the past, President Obama has echoed Gates in his view that Congress, not the courts, should decide whether to repeal “don’t ask, don’t tell.”

“The president has taken a very consistent position here, and that is: ‘I will not use my discretion in any way that will step on Congress’ ability to be the sole decider about this policy,’ “ said Diane Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports repeal.