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Got Whiplash? DADT Is Back (For Now)

By L.K. Regan

A mere two days after we first told you about a federal judge's refusal to stay her ruling ending DADT, an appeals court has stepped in and effectively put the policy back in place. Confused? You're not alone.

A three-judge panel of the Ninth Circuit Court of Appeals ruled yesterday that the government have a temporary stay of a lower court judge's ruling that DADT violates soldiers' constitutional rights. The government is appealing that ruling, and presented their case for a stay on several grounds. They argued in part that having court decisions determine the fate of the policy was creating a confusing situation, and that, though they were committed to ending DADT, they wanted to do so in what President Obama last week called "a way that is orderly."

Confusion is already a fact of the situation, however. In accordance with last week's injunction by the lower court judge who ruled against DADT, the Defense Department changed its guidance to military recruiters, telling them that they would need to immediately begin accepting gay recruits. In a very high-profile test of this change, Lt. Dan Choi, who was discharged under DADT in July and has become the public face of that policy's cruelty, went to a Times Square recruiting office in New York and reenlisted. (He was told he was too old to join the Marines and submitted an application for the Army instead—an application that now will presumably be denied.) What will happen to the people who enlisted in the last week, or who came out to their commanders or colleagues?

They may well be discharged. But, the plaintiffs in the case argue, their presence in the military, however brief, serves a purpose, particularly as the court considers whether to make its current temporary stay an extended one. Said one of the plaintiffs in the suit, gay veteran Alexander Nicholson, “We hope that the 9th Circuit will recognize the inherent contradiction in the government’s arguments for a longer stay in light of eight full days of non-enforcement with no ‘enormous consequences.'"

President Obama said last week that DADT "will end on my watch." He and other officials repeatedly refer to a Pentagon study underway that is intended to provide guidance on how to implement a DADT repeal. That survey is due in December. At least until then—and beyond, if Congress fails to act—DADT is likely to remain the law of the land. The Log Cabin Republicans, the plaintiffs in the case that is currently winding its way through the appeals process, first brought that suit in 2004. It could be a long wait for a final decision.