Gay Military Recruits Allowed: What Happens to 'Don't Ask Don't Tell' Now?

(Oct. 19) -- Today is set to be a significant milestone in what looks like a steady march toward the end of "don't ask, don't tell," now that the military has reportedly told recruiters to start accepting openly gay applicants. But, before anyone does anything drastic like gleefully enlist and come out, below is a review of the status of the complicated case as it stands right now.

Any Minute Now
U.S. District Court Judge Virginia A. Phillips is scheduled to announce her decision today on whether or not she will grant the government's request for a stay of her injunction against DADT. At a hearing Monday she said she would likely refuse the government's request because it had not proved that the injunction would cause "irreparable harm" to the military or that its appeal would succeed. According to Reuters, her exact words were, "My tentative ruling is to deny the application for a stay."

A Little Background
In September, Phillips declared the government's policy toward gays in the military unconstitutional. Last week she ordered the government to stop enforcing it. The Department of Justice, which is arguing the case for the government, is appealing her ruling and asked that she place a stay on the injunction during the appeals process.

In The Meantime
Meanwhile, the Pentagon announced today that it had directed its recruiters to accept gay applicants in light of DADT's suspension. However, the order came with a caution: recruiters were also told they should explain to applicants that the door might not remain open. If the government wins its appeal, then those openly gay recruits can be summarily kicked out just like old times. As Marc Ambinder of The Atlantic puts it, "Basic message to gays is: don't come out yet, but, please, come in!"

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Obama and DADT
President Barack Obama has said he will end the ban on gays in the military during his presidency, but would prefer to end it in the legislature, not the courts. As he told a Youth Town Hall meeting last week: "This policy will end and it will end on my watch. But I do have an obligation to make sure that I am following some of the rules. I can't simply ignore laws that are out there. I've got to work to make sure that they are changed."

Obama's explanation for why he can't simply end the policy is that "Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end the policy." But as others have pointed out, that's not exactly the case. The Washington Post's Jonathan Capehart write:

Truth be told, with a stroke of a pen, Obama could end don't ask don't tell through a back-door maneuver such as a "stop loss" order. Meaning all troops who come out or are revealed to be gay or lesbian would not be discharged. The rationale could be that because the nation is at war it needs every ready, willing and able service member. And it would be the single-most irresponsible action the president could take.

Still, that hasn't stopped the president from receiving mounting criticism from gay rights groups, who view him as dragging his heels on a cardinal campaign promise. So for now, though DADT has been ruled unconstitutional, it still has enormous influence over military policy and decorum.

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