DADT's Continued Consequences 

The real consequences of allowing "don't ask, don't tell" to continue?

As the legal team challenging the policy in court sees it: Gay service members will face continued investigations and discharges. And the armed forces will be weakened, not sustained, as a result.

In a Monday court filing, attorneys representing a gay Republican group that successfully sued the government in federal court asked a three-judge panel of the U.S. court of appeals for the ninth circuit to suspend "don't ask, don't tell" as the Justice Department appeals the case.

The group argued in its 39-page brief that the government has not met the criteria required for a stay of the lower court decision -- namely that it has not proven a likelihood of success upon appeal, nor has it shown that it will face "irreparable injury" -- or "enormous consequences," as Defense secretary Robert Gates recently said of any abrupt demise of the policy -- if "don't ask, don't tell" is enjoined by the courts.

An injunction on DADT, the Log Cabin Republicans argued, does not negatively affect ongoing defense operations: "It does not order the military to redesign its barracks, to retool its pay scales or benefits, to re-ordain its chaplains, to rewrite its already extensive anti-harassment or 'dignity and respect rules,' or anything else," they wrote.

In a ruling earlier this month, U.S. district judge Virginia A. Phillips, who struck down DADT as unconstitutional in September, ordered the Pentagon to suspend all enforcement of "don't ask, don't tell," including ongoing discharge proceedings of gay service members; Phillips also denied a Justice Department request to block that decision. But last week the ninth circuit granted a temporary stay of Phillips's ruling upon a request by the Obama administration's Department of Justice.

"It remains sad and disappointing that the government seeks to continue to enforce 'Don't Ask, Don't Tell' by its motion for a stay pending appeal, even as the President has repeatedly said that the policy 'weakens' our national security and recently said in a 'tweet' that he basically agrees with Judge Phillips's decision," Dan Woods, lead attorney for the Log Cabin Republicans and a partner at White and Case in Los Angeles, said in a statement following the filing.

Woods wrote to the court that the Justice Department in its arguments solely relied on case law preceding Lawrence v. Texas, the landmark 2003 U.S. Supreme Court case that struck down sodomy laws, establishing the right of private sexual relations for gays and lesbians. Nor did it take into account the ninth circuit's "Witt Standard," where the court in 2008 ruled the government must show that discharging a gay service member is vital to maintain a unit's "good order, morale, and discipline."

The Log Cabin Republicans were joined Monday by several gay organizations and service member advocacy groups, including Servicemembers United, Servicemembers Legal Defense Network, the Palm Center, and Lambda Legal, which filed friend-of-court briefs arguing against further DADT enforcement.

"For anyone who has never been forced to hide who they are, it is difficult to appreciate the Herculean nature of the task that DADT demands," Lambda Legal wrote to the court. "But the proven harms caused by the concealment of one's sexual orientation give some indication of the toll it takes. These harms include severe mental distress, social isolation, anxiety, depression, suicidal ideation, and compromised immune system functioning, which are not inflicted when one is free to disclose one's sexual orientation."

Lambda Legal staff attorney Peter Renn further pointed to the damage caused by "don't ask, don't tell" on the macro level: "We need to stop pretending that overt displays of antigay bias don't have real-world consequences. They do," Renn said. "We are not debating about 'don't ask, don't tell' in a vacuum. ... People may be born gay but they aren't born antigay. They only learn how to be antigay by example, which is exactly what the government is providing here."

Attorneys expect the ninth circuit to decide on the matter this week.