By Michelle Garcia
Originally published on Advocate.com July 06 2011 4:15 PM ET
A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled Wednesday that the U.S. military can no longer enforce the "don't ask, don't tell" policy.
Though President Barack Obama asserted in a news conference last week that certification of DADT repeal passed by Congress will be completed in "weeks, not months," the ninth circuit panel ruled that its stay on a federal judge's 2010 ruling against the policy should be immediately lifted. The government no longer contends that DADT is constitutional, the panel wrote. In its order, the Ninth Circuit cited a recent Justice Department brief in Golinski v. U.S. Office of Personnel Management, in which it argued, “gay and lesbian individuals have suffered a long and significant history of purposeful discrimination.”
The court also noted that repeal of the ban on openly gay service members is well underway, and that "the preponderance of the armed forces are expected to have been trained by mid-summer" on repeal.
A Defense Department spokeswoman said Wednesday that the Pentagon is currently studying the ruling with the Justice Department. "We will of course comply with orders of the court and are taking immediate steps to inform the field of this order," Defense spokeswoman Maj. Monica Matoush said in a statement.
In October 2010, U.S. district judge Virginia Phillips ruled DADT unconstitutional and further ordered that the military stop enforcing the policy. The ninth circuit issued a stay on that ruling pending appeal in the case, filed in 2004 by the Log Cabin Republicans.
"Today the government is enjoined from applying or enforcing ["don't ask, don't tell"], it's that simple," Dan Woods, lead attorney in the Log Cabin Republicans case, told The Advocate Wednesday. "We don't have to wait for politicians and bureaucrats to certify whether the military is ready for repeal, because the courts have done it."
Woods said he has not received any notice on whether the Justice Department intends to appeal the ruling.
In its Friday brief in Golinski, a case challenging the Defense of Marriage Act's prohibition of spousal benefits for gay federal employees, the DOJ articulated its position that DOMA is unconstitutional, and that laws discriminating on the basis of sexual orientation — of which DADT is an example — should be subject to heightened judicial scrutiny.
Alexander Nicholson, executive director of Servicemembers United and a plaintiff in the Log Cabin case, said in a statement Wednesday,: "I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law."
Update: Defense Department spokeswoman Maj. Monica Matoush issued the following statement on the Ninth Circuit ruling:
1. We are studying the ruling with the Department of Justice.
2. We will of course comply with orders of the court, and are taking immediately steps to inform the field of this order.
3. In the meantime, implementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away.
Read the full order here