U.S. military commanders around the globe have been told to stop investigations of gay and lesbian service members and to halt any discharges that were in the works, in the wake of a new Ninth Circuit Court order barring continued enforcement of the so-called “don’t ask/don’t tell” policy, in effect since 1993. That policy, barring gays and lesbians from serving openly in the military, has been repealed by Congress, but the repeal has not yet taken effect.

In a two-page order issued on Wednesday, a three-judge Circuit Court panel said that conditions had changed since the Circuit Court last November allowed the Pentagon to go on enforcing the ban. The military services, the order said, expect to finish by mid-summer the retraining of troops to prepare the way for the ban to end. In addition, it noted, the Obama Administration has “recently taken the position that classifications based on sexual orientation” must satisfy a more rigorous legal test (a switch that the government made in refusing to go on defending the federal Defense of Marriage Act forbidding federal benefits to same-sex couples who are legally married under state laws).

“The circumstances and balance of hardships have changed,” the order said, and the government “can no longer satisfy the demanding standard” for a court order that would keep the policy intact. The anti-gay policy has been struck down by a federal judge in California, but that ruling has been stayed since Nov. 1, and the Pentagon in the meantime has enforced the ban. As a result, investigations of possible violations of the ban, and actual discharges, have continued in the meantime.

The Circuit Court has not yet decided for itself whether the policy is unconstitutional. As part of its new order, it set an expedited schedule for oral argument on that question, to be held in Pasadena, Calif., during the week of August 29.

In response to the new order, the Pentagon announced Wednesday that it would comply, and said it was passing the word to military commanders worldwide. The announcement added that official declarations by President Obama and the new Defense Secretary, Leon E. Panetta, and by the top military officer that the retraining process has been completed are “just weeks away.”

Congress voted last December to repeal the “don’t ask/don’t tell” law, but provided that actual repeal would not take place until 60 days after the President, the Secretary, and the chairman of the Joint Chiefs of Staff certify that the military is ready to go ahead. In the meantime, the ban had remained in full effect, investigations had proceeded, and discharges for violations were carried out.

It is unclear, at this point, what will happen with the Circuit Court case if all of the steps toward repeal have taken place before the Circuit Court could rule on the policy’s constitutionality. The Log Cabin Republicans, a gay rights advocacy group that has been pursuing the constitutional challenge, has made it clear it wants a final ruling that the policy did violate the Constitution, in order to bar Congress from re-enacting such a ban, or adding new conditions for its repeal. Some proposed bills, the group has noted, would impose new restrictions on repeal.

Recommended Citation: Lyle Denniston, Military gay discharges end, SCOTUSblog (Jul. 8, 2011, 9:31 AM), https://www.scotusblog.com/2011/07/military-gay-discharges-end/