WASHINGTON — The Supreme Court on Friday refused to halt enforcement of the military’s “”don’t ask, don’t tell”” policy while its constitutionality is under appeal in federal court in California.
The justices, in a brief order, denied an appeal filed by the Log Cabin Republicans, who insisted that the ban on openly gay service members is unconstitutional and should be ended immediately.
The high court noted that Justice Elena Kagan did not participate in the decision. There were no dissents.
The court’s refusal to take up the issue now means it will be a year or two at least before the constitutional challenge can be finally resolved. Congress could vote to repeal “”don’t ask, don’t tell”” in the lame-duck session, but Senate Republicans have so far blocked the issue from coming to a vote.
Six years ago, the Log Cabin Republicans, a gay and lesbian political group, sued and contended the policy was unfair to gays who wanted to serve in the military, and was also harmful to the military, which had lost the service of thousands of qualified officers. In September, U.S. District Judge Virginia Phillips agreed and ruled the policy unconstitutional.
A few weeks later, she went a step further and ordered the Defense Department to immediately suspend enforcement of the policy. The Justice Department appealed, and the U.S. 9th Circuit Court of Appeals lifted the judge’s injunction on Nov. 1 and said the military may continue to enforce its policy while the appeals go forward.
It is typical for federal judges to permit federal laws to stay in force while their constitutionality is challenged.
But the Log Cabin Republicans filed an appeal last week that urged the Supreme Court to intervene and to reinstate Judge Phillips’ order. That plea was lodged with Justice Anthony M. Kennedy, who oversees the 9th Circuit. Friday’s order said the motion had been referred to the full court, which in turn denied it.
Early next year, the 9th Circuit is expected to hear the government’s appeal of the judge’s ruling that declared the policy unconstitutional.
