Ninth Circuit partially reinstates ‘Don’t Ask Don’t Tell’
Ninth Circuit partially reinstates ‘Don’t Ask Don’t Tell’
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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday ordered [text, PDF] the “Don’t Ask Don’t Tell” policy (DADT) [10 USC § 654; JURIST news archive] to remain partially in place in order for the court to fully consider the issues concerning the policy’s complete repeal. The order follows a motion made by the Obama administration on Thursday asking the court to reinstate DADT [JURIST report], which bars gays and lesbians from serving openly in the military. The government filed an emergency motion arguing that the Ninth Circuit panel’s decision to order a halt to the policy [JURIST report] was misguided and would hinder the repeal process underway. In the ruling, the court agreed that the new revisions might hinder the repeal process:

In the motion for reconsideration, appellants provide considerably more detailed information concerning the implementation of the Don’t Ask, Don’t Tell Repeal Act of 2010 than they did in their May 20, 2011, opposition to the motion to lift the stay. … Appellants acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act. In order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts, the stay … is reinstated temporarily.

Although the DADT policy will be reinstated, the court made explicit demands that the military may not investigate, penalize or discharge anyone from the military as the original 1993 provisions of the policy allowed. Appellants have until July 18 to explain why they did not include the same detailed information in their first motion as they did in their reconsideration motion to lift the stay.

In November, the court issued the original stay [JURIST report] suspending enforcement of the injunction against DADT. The government had requested that the litigation be placed on hold in light of the passage of an act to repeal the policy [JURIST report], arguing that moving forward with the appeal would interfere with the repeal schedule. After hearing seven months of arguments and briefs, the Ninth Circuit rejected that appeal and lifted the stay. Congress recently tried to delay the repeal of DADT when it passed the National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials], which contains a provision requiring the chiefs of the branches of the military to submit written certification that the DADT repeal will not be harmful. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.