High court rejects ‘don’t ask’ appeal
Policy will remain in effect while law is challenged
WASHINGTON – The Supreme Court on Friday refused to halt enforcement of the military’s “don’t ask, don’t tell” policy while its constitutionality is under appeal in federal court in California.
The justices, in a brief order, denied an appeal filed by the Log Cabin Republicans, who insisted that the ban on openly gay service members is unconstitutional and should be ended immediately.
The high court noted that Justice Elena Kagan did not participate in the decision. There were no dissents.
The court’s refusal to take up the issue now means it will be a year or two at least before the constitutional challenge can be finally resolved. Congress could vote to repeal “don’t ask, don’t tell” in the lame-duck session, but Senate Republicans have so far blocked the issue from coming to a vote.
Six years ago, the Log Cabin Republicans, a gay and lesbian political group, sued and contended the policy was unfair to gays who wanted to serve in the military, and was also harmful to the military, which had lost the service of thousands of qualified officers. In September, U.S. District Judge Virginia Phillips agreed and ruled the policy unconstitutional.
It is typical for federal judges to permit federal laws to stay in force while their constitutionality is challenged.
The government appealed Phillips’ ruling that declared “don’t ask, don’t tell” unconstitutional, and the 9th Circuit is expected to hear the case early next year.
The Obama administration has been sharply criticized by gay-rights advocates for appealing the district court’s ruling. In their legal briefs, Justice Department lawyers stressed the “don’t ask” policy was written into federal law in 1993 and cannot be removed by the administration. Under the Constitution, the president has the duty to ensure the laws are “faithfully executed.”
The law says a service member will be discharged if he or she has “engaged in (or) attempted to engage in … a homosexual act” or has “stated that he or she is a homosexual or bisexual or words to that effect.” Military regulations, however, say a “service member’s sexual orientation is considered a personal and private matter and is not a bar to continued service.”