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Appeals court reinstates ‘don’t ask, don’t tell’

Grants a stay of judge’s order; Halts gay enlistments

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By Sabrina Tavernise and John Schwartz
New York Times / October 21, 2010

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WASHINGTON — A federal appeals court yesterday temporarily stalled the landmark court decision allowing openly gay recruits to be accepted into the military.

In response to an emergency request from the government, a three-judge panel of the US Court of Appeals for the Ninth Circuit, in San Francisco, issued a one-page order late in the day allowing the Pentagon to continue enforcing the “don’t ask, don’t tell’’ law, which bars openly gay, lesbian, and bisexual service members.

The decision, which returns the law to the way it had been before a US District Court judge in California declared it unconstitutional and prohibited its enforcement, will be in effect while the appeals court considers whether to issue a longer stay, until February, when the Ninth Circuit will hear the full appeal. A decision about the longer stay could occur as early as next week; the parties have been told to prepare briefs on the issues by Monday.

The stay almost certainly means the government will go back to enforcing the law as it did before the lower court issued an injunction against it.

Dan Woods, a lawyer for Log Cabin Republicans, which brought the legal challenge to the law, called the stay a “minor setback’’ and predicted the court will not grant a long-term stay.

“We didn’t come this far to quit now,’’ he said.

The stay was issued after military recruiting stations got a brief taste of what life might be like in a world without “don’t ask, don’t tell.’’ On Tuesday, military recruiters began accepting openly gay and lesbian applicants, a break with the long-standing policy that required gays to keep their sexual orientation a secret. Many consider the decision by the military to begin accepting openly gay applicants before the stay as a landmark moment in US history. But for William Kelley, a young man thinking about enlisting, it was just an overdue act of common sense.

“It was a terrible rule,’’ said Kelley, an unemployed 25-year-old leaving a recruiting office in Washington who said he himself is not gay. “It’s the type of thing we’ll look back on and feel ashamed of.’’

A dozen potential recruits interviewed in the capital yesterday echoed his comments. The issue, they said, was one of basic fairness. They said people should be allowed to be themselves no matter where they work. Society — at least for many young Americans — had moved on, and it was time for the military to follow suit, many of those interviewed said.

The Obama administration is in favor of repealing the law but wants the judge’s order suspended because putting it into effect immediately would cause problems for the military.

Military officers have argued that if the change is made too quickly, it will place the military on a collision course with federal statutes. Families and spouses of soldiers have access to benefits like housing, health care, and education through marriage, something that the federal government still does not recognize for same-sex couples.

“We can do this, but we need to make sure we do it right,’’ said an Air Force colonel who asked that his name not be used because he was not authorized to speak publicly on the matter.

Christian A. Berle, deputy executive director of the Log Cabin Republicans, said his organization was advising gay recruits yesterday to make their own decision but be aware of the legal realities.

“Will this make problems for the military?’’ said William Brown, a student who had come to the recruiting office to get information about the Army reserves, possibly as a way to earn money to finish college. “Maybe. But they’ll just have to adjust.’’

In some places, they already have.

One young man who had grown up on US military bases in Europe said both his second-grade teacher and the principal of his Department of Defense-run school were openly gay.

“It was not a big deal,’’ said the man, 22, who gave only his first name, Kevin. “There were a lot of international kids in our school. The US has a more closed-minded approach than Europe.’’

Prejudice against gays is generational, said a 19-year-old at the recruiting office who identified herself by her nickname, Jet. She strongly supported allowing gays to serve openly but said her half-sister’s father, a retired soldier, was opposed.

“A lot of older men who were in the Army would flip,’’ she said. “Maybe around their time, there weren’t people like that.’’

At the recruiting station here, not everyone shared her opinion.

A 21-year-old who declined to give his name said that he feared sexual advances by gay men in boot camp, and that he hoped to finish training before the repeal took effect. He said he knew no gay people and acknowledged that he had never been approached by one.

A man in his 50s, who did not give his name but identified himself as the janitor in the recruiting office, shook his head.

“This would have happened a long time ago, but we’re dealing with politicians,’’ he said.