The Pentagon has taken two courses of action in the past 24 hours in reaction to the federal injunction against the “don’t-ask, don’t-tell” policy ordered by Judge Virginia Phillips. First, they have filed an appeal of the injunction, saying that the disruption it will cause before the appeals have run their course will create unreadiness in a time of war. Second, they have suspended all enforcement of DADT, at least temporarily:
The Pentagon on Thursday issued a worldwide moratorium on investigations and separations of gay service members under the 17-year-old “don’t ask, don’t tell” policy, complying with the order of a California federal judge who declared unconstitutional the ban on open military service by gays. …
In a sworn statement submitted along with the appeal shortly after the Pentagon announcement, Clifford Stanley, undersecretary of defense for personnel and readiness, argued strongly for a stay of the injunction while the government’s appeal is heard.
During the appeals process, “the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas,” Stanley said.
“An injunction before the appeal in this case has run its course will place gay and lesbian service members in a position of grave uncertainty,” he said. “If the court’s decision were later reversed, the military would be faced with the question of whether to discharge any service members who have revealed their sexual orientation in reliance on this court’s decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.
“The stakes here are so high, and the potential harm so great, that caution is in order,” Stanley said.
The risk, as outlined by Stanley, is that the injunction might get lifted down the road if the Pentagon and the White House prevail on appeal. If gays and lesbians start coming out in reaction to the injunction, they may find themselves with a discharge if the DADT policy gets upheld. The uncertainty will create readiness problems that Stanley and the Pentagon claim are unnecessary, as the courts will rule expeditiously enough on the matter.
Theoretically, this makes sense. But let’s say for instance that the injunction is upheld and it takes a couple of years for the core case to get to the Supreme Court, where everyone expects this to be decided. If the Pentagon has lifted DADT for two years and the military has not suffered any notable ill effects from its gay and lesbian members serving openly, how likely will it be that the Pentagon will reinstate the old policy? Congress will be under pressure to maintain the new status quo if no problems arise from it, and if Obama is still in office, he will press Congress for action to rescind DADT. In fact, he will have more latitude in doing that with Republicans in charge, since Obama won’t have to worry about embarrassing the Democratic leadership of the past two years on the subject any longer.
In the meantime, though, the Pentagon has done the right thing by complying with the court order. Full compliance in an injunction in place for any length of time will almost certainly undermine their case, but they have to abide by civilian authority. They have taken the honorable course, even if Stanley is correct and that this should play out through the courts before any change gets imposed on the military from the judiciary.