Former Lt. Dan Choi, one of the most visible faces in the fight to repeal the military’s ban on openly gay servicemembers, stood in line at a Times Square Army recruitment office in New York City Tuesday night, hours after a judge in California refused the federal government’s request to keep “Don’t Ask, Don’t Tell” in place.
U.S. District Judge Virginia Phillips denied the Department of Justice’s request for a stay of the injunction that she handed down earlier this month that ordered the immediate cease of discharges, suspensions and investigations under the ban. However, the DOJ filed an appeal to Phillips’ order with the 9th Circuit Court of Appeals, which overturned Phillips’ injunction Wednesday night.
The rulings came in a case filed several years ago by the Log Cabin Republicans that went to trial this past summer. In her verdict, Phillips said “Don’t Ask, Don’t Tell” violates servicemembers’ constitutional rights to free speech and due process.
Although the government planned to appeal the ruling, the Pentagon announced Tuesday that it had instructed recruiters to allow openly gay servicemembers to enlist.
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, decried the government’s successful appeal.
“Gay and lesbian servicemembers deserve better treatment than they are getting with this ruling,” he said. “We now must look to the Senate next month in the lame duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose.”
The Senate last month failed to advance a bill that would repeal the law after a successful Republican filibuster led by Sen. John McCain (R-Ariz.).
The Obama administration has said that while it supports the full repeal of “Don’t Ask, Don’t Tell,” it believes repeal should be taken up in Congress, not the courts. The Senate has a small window of opportunity in the lame-duck session after the midterm elections to again try to pass the bill.
Robin McGehee, director of GetEqual, which has staged several public actions calling for the repeal of the law, criticized the Obama administration for continuing to defend a law it says it opposes.
“This temporary stay, sought by President Obama’s Department of Justice, brings the military’s discriminatory ‘Don’t Ask, Don’t Tell’ law back from the dead,” she said. “It is a travesty that after numerous attempts, President Obama and Attorney General Eric Holder will go down in history as the Administration that breathed life back into ‘Don’t Ask, Don’t Tell.’ The lives and careers of openly gay and lesbian servicemembers are now back in the crosshairs of our government and a renewed commitment to discrimination falls squarely in the hands of this White House.”
Jen Colletta can be reached at [email protected].