by Bree Abel
On Friday, the U.S. Supreme Court ruled to leave "Don't Ask, Don't Tell" intact while a California federal appeals court considers the constitutionality of the policy.
The New York Times staff began an editorial published Friday condemning the decision as "a victory for theory over reality and a defeat for America’s system of checks and balances."
After the midterm elections, defeating DADT in Congress will likely prove even more difficult, as the Times explains:
The Supreme Court’s order included no explanation, so it’s sensible to look for that in the Justice Department filing that urged the court to rule as it did. Repeatedly, it mentioned repeal of the law by Congress and the process under way in the executive branch laying the groundwork for that. It said the wrong way to overturn the law is by “judicial invalidation” and the right way is by “repeal of an act of Congress by Congress itself.”
Sometimes the courts have to act when Congress lacks the sense or the courage to do so. The Senate could have joined the House in repealing the anti-gay law in September. It did not. Given the sharp rightward turn of Congress in the elections, how can the Justice Department now make that argument with a straight face?
(Read the full editorial here.)
Here's a rundown of recent developments in the federal DADT case, courtesy of Times Topics:
In September 2010, a federal judge in California, Virginia A. Phillips, had ruled that the “don’t ask, don’t tell” law violates the equal protection and First Amendment rights of service members. On Oct. 12, she ordered the military to stop enforcing the law. Although President Obama wants to end the policy, the Pentagon stated its intent to appeal her decision. On Oct. 19, she denied a request from the government to leave the rules in place during the appeal. That same day, the Pentagon instructed recruiters that they could accept openly gay applicants into the military.
On Oct. 20. a federal appeals court temporarily stalled the court decision, returning the law to the status quo before Judge Phillip's ruling. But in the growing legal confusion at the Pentagon over the policy, Defense Secretary Robert M. Gates issued a directive one day later that appeared to be a near moratorium on discharges of openly gay service members.
On Nov. 1, the appeals court issued an order allowing the military to continue enforcing the policy while a lower court decision that struck down the law as unconstitutional was being appealed.
Also from the Times, and worth checking out: A Gay Soldier's Husband, a short film made by Abe Forman-Greenwald in 2009.