SAN DIEGO – The military is accepting openly gay recruits for the first time in the nation’s history, even as it tries in the courts to slow the movement to abolish its “don’t ask, don’t tell” policy.
At least two service members discharged for being gay began the process to re-enlist after the Pentagon’s Tuesday announcement.
A federal judge in California who overturned the 17-year policy last week rejected the government’s latest effort Tuesday to halt her order telling the military to stop enforcing the law. Before her ruling, government lawyers told Phillips they would appeal if she rejected their request.
With the recruiting announcement, the barriers built by an institution long resistant and sometimes hostile to gays came down.
The movement to overturn the 1993 Clinton-era law gained speed when President Barack Obama campaigned on its repeal. The effort stalled in Congress this fall and found new life last month when U.S. District Judge Virginia Phillips declared it unconstitutional.
“Gay people have been fighting for equality in the military since the 1960s,” said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara. “It took a lot to get to this day.”
The Defense Department has said it would comply with Phillips’ order and had frozen any discharge cases. Pentagon spokeswoman Cynthia Smith said recruiters had been given top-level guidance to accept applicants who say they are gay.
AP interviews found some recruiters following the order and others saying they had not heard of the announcement.
Recruiters also have been told to inform potential recruits that the moratorium on enforcement of the policy could be reversed at any time if the ruling is appealed or the court grants a stay, she said.
Gay rights groups were continuing to tell service members to avoid revealing that they are gay, fearing they could find themselves in trouble should the law be reinstated.
“What people aren’t really getting is that the discretion and caution that gay troops are showing now is exactly the same standard of conduct that they will adhere to when the ban is lifted permanently,” Belkin said. “Yes, a few will try to become celebrities.”
An opponent of the judge’s ruling said confusion that has come up is exactly what Pentagon officials feared and shows the need for Phillips to immediately freeze her order while the government appeals.
“It’s only logical that a stay should be granted to avoid the confusion that is already occurring with reports that the Pentagon is telling recruiters to begin accepting homosexual applicants,” said Tony Perkins, the president of the Family Research Council, a conservative advocacy group based in Washington that supports the policy.
The uncertain status of the law has caused much confusion within an institution that has historically discriminated against gays.
Before the 1993 law, the military banned gays entirely and declared them incompatible with military service. There have been instances in which gays have served, with the knowledge of their colleagues.
The Pentagon guidance to recruiters comes after Dan Woods, the group’s attorney, sent a letter last week warning the Justice Department that Army recruiters who turned away Omar Lopez in Austin, Texas, may have caused the government to violate Phillips’ injunction. Woods wrote that the government could be subject to a citation for contempt.
The White House has insisted its actions in court do not diminish Obama’s efforts to repeal the ban.
In their stay request, government lawyers argue Phillips’ order would be disruptive to troops serving at a time of war. They say the military needs time to prepare new regulations and train and educate service members about the change.
Phillips has said her order does not prohibit the Pentagon from implementing those measures. She said the government failed to prove any harm to troops because the policy has been lifted.
The judge also said safeguarding constitutional rights outweighed the government’s unproven concerns of the order’s impact on military readiness and unit cohesion.
“Defendants merely conclude, without explanation, that ‘confusion and uncertainty’ will result if the injunction remains in place,” she said in her ruling. “Thus, defendants have failed to establish they are likely to suffer irreparable injury if a stay is not granted.”
Her decision Tuesday will likely send the legal fight over her order to the 9th Circuit Court of Appeals in San Francisco.
Douglas Smith, spokesman for U.S. Army Recruiting Command based at Fort Knox, Ky., said even before the ruling, recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.
“If they were to self-admit that they are gay and want to enlist, we will process them,” Smith said, adding that the enlistment process takes time. “U.S. Army Recruiting Command is going to follow the law, whatever the law is,” he said.