On Wednesday, the Ninth Circuit Court of Appeals put on hold the decision ordering the military to allow gay people to serve openly in the U.S. armed forces, but the stay isn't a decision to overrule that order. It's not even a decision to let the "Don't Ask Don't Tell" policy to stay in effect until the court decides whether or not to overrule the order.

The court's action was simply intended to give the it time to fully consider the issues. Reflecting this narrow purpose and the urgency of the issue, the order gives the Log Cabin Republicans, the group suing to overturn the policy, only until Monday to argue against leaving the policy in place during the appeal. The federal government won't get its customary chance to rebut any such arguments: It had its say when it asked for the emergency stay.

And some of the government's "say" is worth delving into for its hypocrisy and irrelevance. Notably, the government claims at length that it is against Don't Ask, Don't Tell, and wants it repealed -- eventually -- even as it argues that it will suffer irreparable injury if it gets repealed by the courts now. One alleged source of injury is the fact that changing the policy will force the military to change many other policies immediately that it really needs months to fix, such as "benefits, re-accession, military equal opportunity, anti-harassment, and others."

Really? Why does whether or not a soldier admits to his comrades that he is gay necessarily impact his benefits? If the government wants to extend consider extending benefits to gay partners, it can, but it needn't do so before gay soldiers speak. Indeed, the government, like most employers, could employ openly gay people without giving their partners benefits.

And what's so hard about changing equal opportunity and anti-harassment policies? It's not as if the military needs to invent anything new: Those wheels were fashioned long ago. Many private and public employers that don't prohibit discrimination on the basis of sexual orientation successfully employ openly gay workers, so it's hard to understand why changing those policies must precede or even happen simultaneously with the repealing of Don't Ask Don't Tell. As for re-accession -- i.e., re-enlistment -- what is there to change in those policies that can't be figured out after being openly gay is no longer a barrier to service?

Let's Hear it for Military Discipline


Another set of the government's arguments boils down to this: The military needs to do "careful planning", accomplish a "thorough and deliberate assessment of how best to accomplish a successful transition in policy", and the like.

But wait a second. This is the military we're talking about, an organization we rightfully boast of as being extremely professional and disciplined. The military accomplishes things today the same way it has since its inception: by giving and enforcing orders. I have faith that the U.S. officer corps is sufficiently competent to figure out how to order its soldiers to behave professionally and focus on defeating our enemies in the company of gay people, some of whom they had already fought alongside while theoretically ignorant of their sexual orientation. Similarly I have faith that our service members are sufficiently competent to be able to obey such orders.

At trial, the Log Cabin Republicans introduced evidence that supports the military's ability to function effectively with service members known to be gay in their ranks -- and indeed, evidence that military the has decided on its own that it functions more effectively when it doesn't discharge them. The most persuasive argument from my perspective is that soldiers who in the process of being discharged under Don't Ask, Don't Tell, which by definition means their sexual orientation is known, have their discharge proceedings delayed while they are deployed for combat missions. If having open homosexuals in the ranks were so problematic from a military readiness or unit cohesion point of view, the opposite practice would result -- the military would not risk destabilizing its combat units with soldiers known to be gay.

Keeping the Stay in Place Might Be Safest Course


Unfortunately, not all of the government's arguments are so intrinsically offensive. It raises claims that the case should never have gone forward because the Log Cabin Republicans didn't have standing to bring the suit, that the only harm it need show is the striking down of the statute, and that the Ninth Circuit has already implicitly upheld the basic constitutionality of the policy in a 2008 case called Witt v. The Department of the Air Force AFB (En banc re-hearing denied).

To win on this motion, the government also has to show likelihood of success on the merits -- whether the merits are the standing question or the constitutionality of the statute. Given that, the question of whether or not the government gets a longer stay will at least suggest how the court will rule on the policy.

Suggest the outcome, yes, but not guarantee it: Other factors must be considered, such as the harms the government alleges it will suffer if the policy is struck down. More importantly, because of the nature of the issue, it is possible that the appeals court would leave the policy in place until it rules, even if it's disposed to strike down the law. The judges must certainly be aware that forcing the military to stop enforcing Don't Ask, Don't Tell, allowing servicemembers to believe they can safely come out, then reinstating the policy by overruling the trial court's decision later would be profoundly disruptive, much more so than leaving the policy in effect until a ruling is reached.

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