By Sara Sorcher
October 19, 2010Gays and lesbians can now apply to join the military without hiding their sexual orientation, Pentagon officials confirmed Tuesday.
The high-level Defense Department directive was sent to recruiting officials Friday, effectively halting the military's "don't ask, don't tell" policy of banning gays and lesbians from serving openly, said Cynthia Smith, a Pentagon spokeswoman.
But, she said, military recruiters were told to inform their prospects that the moratorium could be reversed at any time.
Defense officials said last week that they would abide by the order of U.S. District Court Judge Virginia Phillips, who ruled that the 1993 law barring homosexual men and women from serving openly in the military was unconstitutional because it violated the First and Fifth amendments.
After ruling on Oct. 12 that the department "immediately ... suspend and discontinue any investigation, discharge, separation" under the 17-year-old law, the Justice Department requested an emergency stay on the injunction while it prepared to appeal her ruling to the 9th Circuit Court of Appeals.
President Obama, who campaigned as an opponent of the policy, said he would rather see Congress, and not the courts, repeal the law. A legislative repeal could spare the military an abrupt policy change as the nation fights two wars, Obama administration officials have argued.
On Monday, Phillips said from her Riverside, Calif., courtroom that she was inclined to reject the government's application for a stay and added that she expected to issue a final ruling later Tuesday.
Phillips said that the government had failed to provide enough evidence that halting the gay ban would cause "irreparable harm" to the military.
In the wake of the injunction, the Pentagon issued some basic "guidelines" for dealing with the ruling until more permanent change comes, Col. Dave Lapan, a Pentagon spokesman, told reporters earlier today. The injunction put the military's efforts to enforce the law in "a holding pattern," he said.
Despite its commitment to honor the injunction, the Pentagon issued a memo to troops last week urging them not to change their behavior due to the uncertainty over the request for a stay of the injunction and the outcome of the Appellate Court challenge.
"We note for service members that altering their personal conduct in this legally uncertain environment may have adverse consequences for themselves should the court's decision be reversed," Defense Undersecretary Clifford Stanley said in the memo.
No problems have surfaced with the halting of the policy have been reported, Lapan said, "but it's unlikely that reports of such incidents would trickle all the way to the Pentagon."
"In the current environment [with the District Court's ruling], we don't have time to go through the processes to make sure we know the effect on housing, training, benefits [for troops]," Lapan said. "A legislative ruling ... would allow us to take steps to prepare for a legislative change, rather than an abrupt change ... without this information."
By Sara Sorcher
October 19, 2010