it's over (graphic: umpqua)

After the Ninth Circuit lifted the stay on a circuit court ruling that labeled the military’s Don’t Ask Don’t Tell policy unconstitutional and banned enforcement, the military officially suspended Don’t Ask Don’t Tell to comply with the ruling. So regardless of the vote in Congress, the Pentagon study, the long lead time for implementation, Don’t Ask Don’t Tell is officially dead.

The Pentagon has ordered a halt to all separations of gay troops under “don’t ask, don’t tell” and will begin accepting applications from prospective recruits who identify themselves as homosexuals.

The moratorium issued Friday came after a ruling Wednesday by a federal appeals court in California ordering the Defense Department to immediately stop enforcing the law. The court said the law is unconstitutional because it treats gay Americans differently under the law.

Meanwhile, defense officials will continue to prepare for the law’s formal repeal, which Congress approved in December. The law will be formally repealed 60 days after the defense secretary and chairman of the Joint Chiefs “certify” that it will not adversely impact military readiness.

But that’s not really true, is it? Functionally speaking, the law is formally repealed right now. Today. The military is accepting applications from gays and lesbians to serve. They cannot discharge any LGBT service member. It’s over.

There’s some faint ember that the military would appeal the Ninth Circuit ruling, but I think at this point they’re saying, “forget it” and simply moving on.

You can argue that the Congressional vote added legitimacy to repeal, and made it so the Defense Department wouldn’t fight as hard in the event of an adverse ruling on DADT, since they were readying repeal anyway. That’s somewhat valid. But the Ninth Circuit lifted its injunction in relation to the Justice Department’s ending of their defense of DOMA in court, and specifically their assertion that gay and lesbian discrimination is subject to heightened scrutiny. THAT, not the Congressional vote, prompted the change. And without a vote, if DoJ did that at the same time, it’s highly likely that the Ninth Circuit would have lifted the stay on the same schedule.

So Don’t Ask Don’t Tell ended because the executive branch made a choice to end official discrimination of the LGBT community through the courts. I’m not saying the vote was meaningless, but it meant less than a lot of people made of it. In the end, the courts ruled DADT unconstitutional, and the military complied with the ruling.

David Dayen

David Dayen