For the first time in the nation's history, the military is accepting openly gay recruits. Like the pre-Proposition 8 marriages in California, this situation is an intermediate moment between court actions. And while it may not last, it is, at least for now, an open window.
US District Judge Virginia Phillips on Tuesday refused to delay the implementation of her verdict last month overturning Don't Ask, Don't Tell (DADT). In arguments on Monday, the Justice Department tried to persuade Phillips to stay her ruling pending appeal; but Phillips found that the government had no legitimate interest in banning gays and lesbians from military service. In her original ruling, Judge Phillips found that DADT violated service members' equal protection and First Amendment rights. Tuesday she wrote in her decision: “To the extent Defendants now argue that stopping discharge under [DADT] will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial." And yet, she continued, "Defendants did not do so. The evidence they belatedly present now does not meet their burden to obtain a stay."
This has real repercussions for the military, which is scrambling to figure out how to comply with the judge's order. Answer: stop DADT discharges and investigations, and allow gay recruits. And that is what the Defense Department has decided to do, both by freezing discharge cases and instructing recruiters to accept gay and lesbian recruits. But they didn't do it out of the goodness of their hearts. They were pushed to this by the Log Cabin Republicans, who both brought the suit that wound up in Judge Phillips' courtroom, and whose lead attorney warned the Defense Department of the potential contempt of court consequences for refusing to accept gay soldiers. These include people like Omar Lopez, who was discharged for being gay and now wants to re-enlist, but who was denied by an Austin, Tex. recruitment office.
And that's not all. Even if a gay or lesbian recruit can get past the recruitment officer, the continued risks of DADT don't end there. Even though it is technically permissible now for gays and lesbians to enlist, activists are warning about the consequences of doing so. At any moment, if Judge Phillips' ruling is overturned or stayed, DADT will go back into effect, and anyone who announced a gay or lesbian identity will be discharged. Advocacy groups are warning gay and lesbian personnel against coming out, with good reason.
Even so, this is progress. Every day that gays and lesbians enlist and are open, it further demonstrates the idiocy of DADT. In a statement, Log Cabin Republicans executive director R. Clarke Cooper said of Judge Phillips' ruling: “With recruiters accepting gay and lesbian applicants and a week having passed without incident, it is clear that our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom.”