It has just been reported that the U.S. Supreme Court will not halt the discharges of openly gay service members under “Don’t Ask, Don’t Tell”—meaning that the law will remain in effect while the government appeals Judge Virginia Phillips’ October ruling that it is unconstitutional.
The Log Cabin Republicans had filed a request to vacate the stay on DADT enforcement on November 5th, and Justice Anthony Kennedy referred it to the entire court rather than making the decision on his own.
This decision comes shortly after the U.S. solicitor general, Neal Katyal, urged justices on Wednesday not to reinstate an order by Judge Virginia Phillips to suspend the law. It also comes after the release of a study conducted by the Pentagon that shows more than 70% of military troops supporting the repeal of DADT.
LGBT organizations are responding already. Alexander Nicholson, the Executive Director of Servicemembers United—the nation’s largest organization of LGBT troops and veterans—issued the following statement regarding today’s decision:
“It is unfortunate that an unconstitutional law that is causing substantial harm to military readiness and to tens of thousands of troops is allowed to remain in effect for even one more day. This just underscores the need to continue to put pressure on Senate Majority Leader Harry Reid to allow the defense authorization bill to come back up and take its first procedural step before the Senate’s Thanksgiving recess. Servicemembers United, Servicemembers Legal Defense Network, Stonewall Democrats, and the Log Cabin Republicans have all strongly and consistently called on Senator Reid to do just that. It is now time for other organizations, as well as the White House, to publicly do the same.”
Log Cabin Republicans issued this response:
“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 are not surprised,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “We are committed to pursuing every avenue in the fight against this failed and unconstitutional policy. Log Cabin will continue working to secure the votes needed for legislative repeal, and if necessary, we look forward to seeing President Obama’s attorneys in court next year to prove, once again, that ‘Don’t Ask, Don’t Tell’ doesn’t work.”
“We are disappointed by the Court’s ruling to deny our application to vacate the stay by the US Court of Appeals for the Ninth Circuit,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “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. We and Log Cabin Republicans will continue to fight on to protect the constitutional rights of all Americans who want to serve in our military without regard to their sexual orientation. Our next step will be to ask the Ninth Circuit to expedite the government’s appeal from Judge Phillips’s judgment and injunction.”
ABC News is calling it a victory for the Obama administration, which has thus far supported repealing the law through Congress rather than the courts. But the Chicago Tribune notes the difficulty of bringing the issue to Congress since Senate Republicans have blocked it from coming to a vote. The blog of the Supreme Court says that therefore, the policy will remain in effect at least through mid-March of next year. Justice Elena Kagan took no part in the decision.
GLAAD has been monitoring and reporting regularly on the coverage surrounding “Don’t Ask, Don’t Tell,” and we will continue to ensure fair media representation of the issue.