'Don't Ask, Don't Tell' Ruling Raises Ante on Defense Policy

Judge trumps Obama, Defense Department on 'don't ask, don't tell.'

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The judiciary tossed the politically hot potato of gay rights in the military back to the executive branch after a federal judge in California last week issued an injunction stopping enforcement of the "don't ask, don't tell" policy. The prohibition on openly gay men and women serving in the military has been Pentagon policy for 17 years, though events over the past few months have led many to believe that the end is nigh for "don't ask, don't tell."

The Department of Justice quickly requested a stay of the ruling until it can be appealed. President Obama has said that Congress, rather than the courts, is his preferred venue for ending a policy he has long opposed. Public opinion polls show wide support for ending "don't ask, don't tell," and the conventional wisdom in Washington is that the policy has only a few months of life left. Last month, in a separate case, a judge in Tacoma, Wash., ruled that a decorated flight nurse discharged for being a lesbian should be reinstated. 

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It is a messy endgame for what has been a controversial method of dealing with homosexuals in uniform. For the military's part, Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have both spoken publicly about the need to end the policy, though not before the impact of doing so can be closely studied by the military. Gates ordered a services-wide study, including a survey of soldiers, Marines, and their families, the results of which are due on his desk December 1. Last week, in the wake of the ruling, he reiterated his call to wait for that review.

While Obama may prefer that Congress legislate the regulation out of existence, the policy's record on Capitol Hill has been tortured. Earlier this year, the House passed legislation that would immediately and automatically end "don't ask, don't tell" once the Pentagon had certified the Gates review.

Then, last month, opponents of the policy lost a critical battle when Senate Republicans held up passage of the entire defense budget because a clause in the bill would also have ended the policy. With the GOP poised to make substantial congressional gains in the coming midterm elections, prospects for Obama's preferred solution are looking increasingly unlikely, gay rights groups note.

The injunction issued last week by U.S. District Judge Virginia Phillips comes a month after her verdict in a case first brought by gay Republicans who challenged the constitutionality of "don't ask, don't tell." Government lawyers had argued that an immediate injunction would harm the military.

Undermining the government's case, however, were the commander in chief's own words, which the judge quoted in her ruling last month. " 'Don't ask, don't tell' doesn't contribute to our national security . . . preventing patriotic Americans from serving their country weakens our national security," Obama said last year. More than 13,000 people have been discharged from the armed services under the rule. Many had critical skills, particularly language skills that were in high demand, while the expulsion of others forced the military to relax its recruiting standards to fill the ranks.