A court order for the Pentagon to stop enforcing "don't ask, don't tell" is likely the last gasp of the 17-year policy that was repealed by Congress in December but remained temporarily in effect, experts and activists said Thursday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled Wednesday that because Congress repealed the ban on gays serving openly in the military last year, it doesn't make sense to continue enforcing it — although the Pentagon is still awaiting certification from the president, secretary of defense and chairman of the Joint Chiefs of Staff that the new "open service" policy won't adversely affect the military.
"I think it's safe to say this is the final nail in the coffin," R. Clarke Cooper, the executive director of Log Cabin Republicans, a group for gay Republican Party members, said of the court's ruling.
An 'Insurance Policy'
Cooper, a captain in the U.S. Army Reserve, told NPR he would be "very surprised" if the Justice Department tried to pursue the case any further.
Last year, before the repeal of don't ask, don't tell, Log Cabin Republicans persuaded a lower court to declare the policy unconstitutional. A higher court overturned that ruling, which was effectively reinstated by the 9th Circuit on Wednesday.
Cooper said despite the repeal of the 1993 policy — which resulted in the discharge of more than 14,000 service members over the years — Log Cabin Republicans wanted to press ahead with the case as an "insurance policy."
Even after Congress approved open service, don't ask, don't tell has remained in force awaiting final certification that the new policy is "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces."
Certification Could Be Months Away
In the interim, dozens of cases of service members who were set to be discharged have gone ahead, said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network. Sarvis said those cases will now be suspended.
"This sad chapter is almost over, but it needs to be brought to finality," he said of certification, which could still be weeks or months away.
On Wednesday, a spokesman said the Pentagon is taking immediate steps to inform commanders in the field that don't ask, don't tell will no longer be enforced in accordance with the 9th Circuit's decision.
"From what I'm seeing, it appears the Department of Defense is resolved and resigned that this is the new policy and there's no going back," said Philip Cave, an attorney who deals exclusively with military law.
But Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, said although don't ask, don't tell was already in its death throes, the Department of Justice had an ethical obligation to defend it vigorously before the 9th Circuit.
"I would say the Justice Department's actions in this case were unprofessional," Spakovsky said.
"They essentially threw the case," he said. "They didn't call a single witness. They should have gotten out of it earlier if they didn't want to defend it."
Although the stay was lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government's appeal of the original lower court's decision is valid. Even so, any further movement in the case appeared unlikely, Cooper said.
In the meantime, Cooper and others have observed that the military has gone forward with training to prepare its officers and enlisted personnel for the official end of don't ask, don't tell.
"They are proceeding with that in a very professional, very methodical way, and they should be commended for that," he said.