Military Can Go Back To Its Gay-Discriminating Ways

Any gay servicemembers who took that injunction against Don’t Ask, Don’t Tell as encouragement to come out or re-enlist — you’re out of luck. It’s back, as of yesterday. You can go back to the closet now!

On October 12, Judge Virginia Phillips had ordered the military to stop the discharges of gay servicemembers, as well as allow them to volunteer their sexual orientation without penalty. They’d tentatively begun enforcing that, while warning recruits and servicemembers that that it could change as the decision climbed through the judicial system. And indeed it has: in the Ninth Circuit, in a three-judge panel (two Reagan appointees, one Clinton appointee),

Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote that they were expressing no opinion on the eventual outcome of the case. But they said the government’s request to block Judge Phillips’s injunction should be granted out of deference to the judgment of Congress and the military, and in light of the fact that decisions by four other federal circuit courts finding the law not unconstitutional were “arguably at odds” with Judge Phillips’s rulings.

Looks like Phillips is going to stand alone on this one. There are now two options for the repeal of Don’t Ask Don’t Tell going forward: the Ninth Circuit has to hear the case and rule on it, which in either eventuality could lead it to the Supreme Court. Or Congress could pre-empt it, if the Senate votes on the repeal in the lame duck session in December. That’s the outcome that would make the Obama administration happiest, given that their stated goal is a permanent legislative repeal. But first comes tomorrow’s election results, which will affect who’s a lame duck and who is just ducking having to actually vote on anything of principle.