California-based U.S. District Judge Virginia Phillips ordered the military a week ago to stop enforcing the “Don’t Ask, Don’t Tell” policy and on Monday tentatively refused a Pentagon request to re-instate the 17-year-old ban.
Phillips issued a final decision late on Tuesday affirming her order.
Although government concerns about military readiness and cohesion are important, “these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights,” she wrote in a six-page opinion.
A former Iraq war veteran who was discharged for revealing his sexual identity appeared on Tuesday at a recruiting station at New York’s Times Square to re-enlist, and obtained an Army application.
“In the recruiting station,” Daniel Choi wrote on his Twitter feed. “Apparently I’m too old for the Marines! Just filled out the Army application.”
The Obama administration is waging a legal battle to temporarily reinstate the Clinton-era policy, whereby homosexuals are allowed to serve in secret but are discharged if their sexual orientation is revealed. Before the policy was enacted in 1993, homosexuals were banned altogether.
President Barack Obama wants to push forward, however, a more deliberate repeal through Congress that would allow the Pentagon to grapple with complicated issues, like dealing with spousal benefits and housing for openly serving gays.
The legal limbo has put the U.S. military in an awkward situation: it is telling its forces not to “change their behaviour” while the appeals process takes its course, while at the same time saying openly serving homosexuals must be treated the same as anyone else.
“Recruiters have been given guidance, and they will process applications for applicants who admit they are openly gay or lesbian,” said Cynthia Smith, a Pentagon spokeswoman.
Choi is not alone. Last week, the Log Cabin Republicans, a gay rights group, protested a case of another openly gay veteran, Omar Lopez, who was reportedly turned away from a recruiting station in Austin, Texas the day after Phillips’ ruling. He had been discharged for being gay.
The Log Cabin group, which challenged the policy in court, said about 13,000 men and women in uniform had been expelled from the armed services under the policy since 1993.
The debate comes at a tough time for Obama and his Democratic allies in Congress who need support from the gay community, a key constituency, as they fight to hold off a possible Republican rout in the November 2 elections.
Republicans, many of whom fiercely oppose gays serving openly in the military, are seen as gaining from any hot-button social issues they can use to galvanize their conservative base at the polls. Reuters