U.S. District Judge Virginia Phillips issued an injunction in October against enforcing "don't ask, don't tell."
SAN FRANCISCO -- A federal appeals court ordered a halt Wednesday to the armed forces' policy of discharging openly gay service members, citing the impending demise of "don't ask, don't tell" and the Obama administration's escalating criticism of antigay laws.
Congress has already voted to repeal "don't ask, don't tell," the 1993 law that barred military service by gays and lesbians who disclose their sexual orientation. But the repeal was due to take effect only after the Pentagon certified that the change in the law would not interfere with military readiness or recruiting, a finding the Obama administration had projected for the end of this year.
On Wednesday, however, the Ninth U.S. Circuit Court of Appeals in San Francisco - which had previously allowed the government to follow its own timetable - reinstated a federal judge's injunction that had briefly barred enforcement of the law last fall before it was suspended.
Circumstances changed
"The circumstances and balance of hardships have changed," said the three-member panel, which consisted of Chief Judge Alex Kozinski, a Republican appointee, and Democratic appointees Kim Wardlaw and Richard Paez.
The court cited government reports that most troops should be ready for the new policy by midsummer. The judges also noted that Obama administration lawyers have not defended the constitutionality of "don't ask, don't tell," but argued only that courts should defer to congressional judgment on military matters.
In addition, the panel said, President Obama has become increasingly critical of laws that discriminate against gays and lesbians. Obama withdrew legal support in February from a law denying federal benefits to married same-sex couples, and his lawyers now argue that all such laws should be declared unconstitutional unless they serve some vital government need.
Gay-rights advocates celebrated the court order.
"Finally, people who wish to serve our country are going to be allowed to do so without regard to their sexual orientation," said Dan Woods, lawyer for Log Cabin Republicans, the group that challenged the 1993 law.
Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco, cited other recent victories, including New York's legalization of same-sex marriage last month.
A historical moment
"For the first time in our nation's history, we are within sight of a time when LGBT people can participate in all aspects of society without fear of being singled out for stigma and discrimination by their own government," she said.
Woods and others nevertheless advised gays and lesbians in the military to be cautious about disclosing their sexual orientation in the near future, because the administration could ask the Supreme Court to reinstate the law.
Justice Department spokeswoman Tracy Schmaler said the department is reviewing the ruling.
U.S. District Judge Virginia Phillips of Riverside issued an injunction against enforcement of "don't ask, don't tell" in October after a trial that included testimony by gay and lesbian ex-service members about the harassment and coercion they faced under the policy.
Phillips had ruled in September that the 1993 law violates service members' privacy and freedom of speech and reduces military effectiveness by removing skilled personnel. A different appeals court panel suspended her injunction eight days after it took effect.
The administration is still appealing Phillips' ruling. The appeals court scheduled arguments for the week of Aug. 29 in Pasadena.
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