staff and news service reports
updated 7/6/2011 6:21:47 PM ET 2011-07-06T22:21:47

A federal appeals court ordered the U.S. government on Wednesday to immediately cease enforcing the ban on openly gay members of the military, a move that could speed the repeal of the 17-year-old rule.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said the "don't ask, don't tell" policy must be lifted now that the Obama administration has concluded it's unconstitutional to treat gay Americans differently under the law. The appeals court noted that Congress repealed the policy in December and that the Pentagon is preparing to certify that it is ready to welcome gay military personnel.

Court order on gay military ban (PDF)

Pentagon officials said Wednesday that they will comply with the court order and are taking immediate steps to inform commanders in the field. Col. Dave Lapan, Pentagon spokesman, said the department is studying the ruling.

Gay rights advocates said without an appeal to the U.S. Supreme Court — which seems unlikely since the Pentagon already is committed to repealing the rule — the government now is barred from discharging gay or lesbian servicemembers anywhere in the world.

“The ruling...removes all uncertainty — American service members are no longer under threat of discharge as the repeal implementation process goes forward,” R. Clarke Cooper, executive director of the Log Cabin Republicans, said in a statement to Cooper is a captain in the Army Reserve.

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The ruling came in response to a motion brought by Log Cabin Republicans, a group for gay GOP members, which last year persuaded a lower court judge to declare the ban unconstitutional.

After the government appealed U.S. District Judge Virginia Phillips' decision, the 9th Circuit agreed to keep the policy in place until it could consider the matter. The appeals court reversed itself with Wednesday's order by lifting its hold on Phillips' decision.

"The circumstances and balance of hardships have changed, and (the government) can no longer satisfy the demanding standard for issuance of a stay," the panel said.

Although the stay is lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government's appeal of the lower court's decision is valid. But it's unclear whether the Pentagon will pursue the appeal, since military officials have already said they'll stop enforcing the ban.

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Still, Dan Woods, the lawyer representing Log Cabin Republicans, cautioned gay military personnel against rushing to declare their sexual orientations until the government declares that it intends to abide by the ruling.

During the eight-day period last fall before the 9th Circuit put Phillips' injunction prohibiting enforcement of "don't ask, don't tell" on hold, several of the estimated 14,000 veterans who had been discharged under the policy unsuccessfully tried to re-enlist. A handful of Air Force members and members of the National Guard have been discharged from the military under the policy since December.

“I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step," Cooper said.

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The Pentagon has been moving carefully to implement the repeal of the 17-year-old ban on openly gay troops. Under the law passed and signed by the president in December, final implementation would go into effect 60 days after the president and his senior defense advisers certify that lifting the ban won't hurt troops' ability to fight.

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he was hopeful the Department of Defense would not challenge Wednesday's order.

"This whole matter could have been avoided had we had certification back in the spring. It's time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy," Sarvis said.

This article contains reporting from The Associated Press and staff.

Video: What follows the repeal of “Don’t ask, don’t tell?”

  1. Closed captioning of: What follows the repeal of “Don’t ask, don’t tell?”

    >>> don't tell" would be signed by the president likely on wednesday morning.

    >> the military's ban on gay service members could still be in effect for another six months to a year despite congress approving the repeal in a historic vote this weekend. and for the time being , openly gay service members could still face possible expulsion from the military. joe salmanese is president of the human rights campaign and really led this fight. congratulations to you.

    >> thank you.

    >> how did it come back from the dead? someone was telling me that stanley hoyer was an unsung hero. when the bill came from the house he fast-tracked it and cut through all the procedural stuff.

    >> i spoke to congressman hoyer last friday night and he with our legislative director and others kind of revised the bill and decided that they would bring it back up for a second time in the house as you saw last week. did that and then sent it over to the senate as a privileged message which meant that once it got to the senate it wouldn't take nearly as much time as it would have otherwise. so it was a, as he said, 100 stars were going to need up the right way for this to work and they did and it did.

    >> what's next? six months to a year certain things have to be certified by the secretary and other military leaders, service chiefs.

    >> yeah.

    >> do you fear that there will be a foot-dragging, especially in the marine corps ?

    >> i don't think so, i think that the implementation studies certainly creates a much more expeditious path, i think, than people thought it might have. i think it's in the interest of the administration to get this done as expeditiously as possible.

    >> that's what they said they wanted. they wanted a clear path to being able to manage the change rather than having courts at various stages.

    >> right.

    >> -- ordering them to do something precipitously.

    >> and don't forget, the republicans' case continues to be in play which also, to may way of thinking, means this is a process they've got to get through rather expeditiously and i think it's -- the president and our allies in congress didn't bring it this far for it to drag out any longer than it has to so our role is going to be to press the administration to get this done as quickly as possib possib possible.

    >> what problems do you anticipate and what do you think the real challenges are in combat for the front-line troops.

    >> as the report spelled out, far fewer than anybody had anticipated, i think that they're going to have to go along the lines of, as you would in the workplace. sort of the military version of human resource and personnel matters, but also, there's a whole series of excess around benefits which the existence of doma is going to continue to complicate a bit, in terms of those sorts of issues notification, next of kin, nonspousal beneficiary. there's a whole range of things to look at and put in place so the same working group that was working together on gathering this information over the course of the year will now have to get together and lay out a timeline and a working plan to get this done. as i said i think it's in everyone's best interest , particularly the administration's to get this done as quickly and expeditiously as possible.

    >> you did an amazing job for your cause and props to you and props to rachel maddow because she -- in the broadcast world she was on it.

    >> she was down there at those first hearings and it was great to see her there and she has just really been such a heroic force in enabling these service members to tell their stories.

    >> changing the conversation.

    >> yeah.

    >> thank you so much.

    >> thank you.


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