The Supreme Court refused Friday to take up a request by the Log Cabin Republicans, a gay rights group, asking the justices to reinstate a federal judge’s order blocking enforcement of the Pentagon’s “don’t ask, don’t tell” policy.
The action means the Defense Department can continue to enforce the disputed policy banning openly gay individuals from serving in the military pending the outcome of an ongoing legal battle over the measure’s constitutionality.
US District Judge Virginia Phillips ruled in September that the 17-year policy violated the rights of gay and lesbian service members to be treated equally by the military. In October, the Riverside, Calif.-based judge issued a worldwide injunction blocking Pentagon enforcement of the policy.
The injunction was in place for a week before an appeals court panel ordered that it be lifted. That action effectively reinstated the “don’t ask, don’t tell policy” for the period of time necessary for the Ninth US Circuit Court of Appeals in San Francisco to hear the government’s appeal of Judge Phillips’s decision in the underlying case. Oral arguments in the appeal are set for February.
“Log Cabin Republicans are disappointed that the Supreme Court decided to maintain the status quo with regards to ‘don’t ask, don’t tell,’ but we aren’t surprised,” Executive Director R. Clarke Cooper said in a statement. “We are committed to pursuing every avenue in the fight against this failed and unconstitutional policy.”
Although President Obama has said he is opposed to the antigay military policy, his administration has argued in court that repeal of “don’t ask, don’t tell” should be undertaken by Congress rather than by judicial decision, and that the military be given enough time for a gradual transition.
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.