Supreme Court refuses to hear bid to block 'don't ask, don't tell'

The administration has also stressed that the Pentagon is expected in early December to release the results of a comprehensive study of the potential impact of ending the “don’t ask, don’t tell” policy. Recent press reports say the study will conclude that repeal would not be significantly disruptive to military readiness or morale.

Nonetheless, some analysts are predicting that repeal is becoming more difficult with the arrival of new, more conservative, members of Congress. It is also unclear whether there is enough time during Congress’s lame duck session to obtain a vote to end the policy.

“With the likelihood of Congress repealing ‘don’t ask, don’t tell’ fading with each passing day, judicial relief continues to be perhaps the most viable avenue for ending this unconstitutional policy,” Dan Woods, lead lawyer for Log Cabin Republicans, said in a statement.

Supporters of the antigay restrictions say they are concerned that ending the restrictions might undercut unit cohesion at a time when US forces are facing mounting hostilities in Afghanistan.

Opponents of "don’t ask, don’t tell" say it has undercut national security by forcing a large number of qualified and talented service members out of the armed forces solely because of their sexual orientation.

Brief to the court

In a brief filed at the Supreme Court on Friday, the Log Cabin Republicans urged the high court to reinstate Judge Phillips’s injunction.

“The government pretends to this court that legislative repeal of ‘don’t ask, don’t tell’ is assured and that an orderly, ‘deliberate’ implementation of that repeal – on the military’s timetable – must be conducted,” Mr. Woods wrote. But repeal is far from assured and, according to press reports, increasingly unlikely, he said.

“Because legislative repeal is dubious,” Woods wrote, “it cannot be relied on to remedy the constitutional harms that service members are sustaining every day.”

The justices offered no explanation for their action.

The brief order noted that Justice Elena Kagan did not participate in consideration of the group’s request. Before her confirmation last summer, Ms. Kagan served as US Solicitor General – the Obama administration’s top lawyer at the Supreme Court.

The case is Log Cabin Republicans v. United States. The Ninth Circuit case number is: 10-56634.

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