Repealing 'Don't Ask, Don't Tell': Congress Takes the Issue Back From Judges

Saturday's Congressional repeal of the law supporting the U.S. military's "Don't Ask, Don't Tell" ban on openly gay or lesbian service members will ultimately render moot the many legal challenges to it that have cropped up all around the country.

Once repeal is formalized, a process which will likely take months, all of these lawsuits -- including the landmark ruling out of California in which a federal judge declared the employment policy an unconstitutional infringement upon the rights of gay and lesbian service members -- will be dismissed either at the request of the parties or by judges themselves. There is no need, after all, to stop a policy that may no longer by law be enforced. And federal judges going forward are unlikely to be receptive to any arguments to the contrary.

The legislative repeal thus means the end of any significant judicial role in the official debate over the fate of "don't ask, don't tell." One branch has taken back control of the issue from another. There will be no showdown before the 9th U.S. Circuit Court of Appeals or the U.S. Supreme Court over the constitutionality of the policy. No national ruling by a federal appeals court will further intensify the political debate over the presence of gays in the military. This also means no ruling that would later be cited as a legal precedent, one way or the other, in the looming court battles over the constitutionality of same-sex marriage in California or elsewhere. All of that is formally foreclosed by a voluntary legislative repeal of the policy.

U.S. District Judge Virginia Phillips, whose September ruling in Log Cabin Republicans v. United States temporarily enjoined enforcement of the policy all over the world, deserves much of the credit (or the blame, depending upon your point of view) for this result. Her ruling -- especially the extensive factual findings within it -- put enormous political and practical pressure upon lawmakers to finally accept and act upon the recommendations of most Pentagon leaders who were pushing for repeal. Among these executive branch voices was the chairman of the Joint Chiefs of Staff, Adm. Michael Mullen, who has for the past year or so has expressed his support for the repeal of the policy.

Judge Phillips ruling was likely to be affirmed on appeal by the 9th Circuit, especially in the wake of the massive Pentagon study confirming the military's ability to transition effectively beyond "don't ask, don't tell." Moreover, it might have received some measure of support from Supreme Court Justice Anthony Kennedy, whose vote would have likely determined the matter. But the path through the federal appeals courts would have generated another year or so of legal uncertainty (at least) over the policy. And it was that uncertainty, and the notion that the federal judiciary ultimately might decide how and when the policy would be rescinded, which gave . Mullen a new argument in his push for repeal.

Congressional repeal, he asserted, would preclude any so-called "judicial activism" on the part of the federal courts because it would permit the military to control the timing and the means by which it ended "don't ask, don't tell." In November, Mullen said: "The courts are very active on this. And my concern is that at some point in time the courts could change this law and, in that, not give us the right amount of time to implement it (the change)." More recently, Mullen said: "If this law is going to change, it's better to be changed by legislation rather than have it struck down by the courts."

Clearly that argument appealed to a few key moderate Republicans in the Senate -- just as it did to the White House and the Pentagon (and, to some degree, perhaps, to Judge Phillips herself). In the end, it was the Congress, and not a lone federal judge, which "acted" to terminate the policy.

But Saturday's repeal of the "don't ask, don't tell" won't necessarily rule out future litigation involving military policies that may impact gay and lesbian service members. Depending upon how the new protocols are interpreted and carried out, it is still possible we could one day see a new legal challenge against the Pentagon based upon a soldier's sexual orientation.

And, if there is an unwarranted delay in the implementation of the Pentagon's new policies, it is possible we could see a challenge to that as well. Questions remain, too, about the impact the federal Defense of Marriage Act (DOMA) will have on the new Pentagon policy toward openly gay or lesbian service members; a policy which, by inference if not declaration, recognizes the existence of same-sex partners within the military. That federal law, a portion of which also was declared unconstitutional earlier this year, bars same-sex partners from receiving certain benefits available to opposite sex partners in the military.

In the meantime, the Servicemembers Legal Defense Network, an advocacy group that provides legal assistance to service members, cautioned "gay, lesbian and bisexual service members" Saturday to "remain cautiously closeted" until the president signs the new measure into law, the Pentagon adopts new policies, and a Congressional waiting period passes. The group also asked Defense Secretary Robert Gates to "suspend" all ongoing "Don't Ask, Don't Tell" investigations during that time.