DADT military gay ban upheld by Supreme Court

A mock Uncle Sam sign that reads, “I'm counting on you! Don't ask, Don't tell.”

“Don't Ask, Don't Tell” will be sticking around until at least March. (Photo Credit: CC BY-ND/tmatt/Get Religion)

“Don’t Ask, Don’t Tell” (DADT) has been upheld without dissent by the Supreme Court of the United States, according to the SCOTUS blog. Justice Elena Kagan, a noted anti-DADT activist during her previous tenure at Harvard University, was recused from the decision. The 1993 law that bars homosexuals from serving openly in the armed forces will remain in effect until at least March unless Congress repeals DADT, which is considered unlikely.

DADT remains under constitutionality review

DADT can be repealed by Congressional legislation, but the most likely path will be to wait until March. The Ninth Circuit Court’s review of a federal judge’s decision to repeal DADT is on the docket for late February/early March, and that will be the earliest opportunity to revisit DADT, barring an act of Congress.

The Court’s decision denied a request on behalf of a gay rights group to lift a Circuit Court stay of the federal judge’s decision to ban “Don’t Ask, Don’t Tell.” Not only has the plea to block the policy in full been denied until at least March, but a related request to prevent the Pentagon from ordering discharges has also been denied.

Justice Kagan disqualified herself from the order

The lack of participation by Justice Elena Kagan was decided upon by the justice herself. Kagan’s opposition stance on “Don’t Ask, Don’t Tell” while at Harvard – as well as actions she took against “Don’t Ask, Don’t Tell” while serving as U.S. Solicitor General – led her to recuse herself so that impartiality would be maintained in the Supreme Court’s decision.

Obama had already argued to leave DADT alone

The Obama administration has urged SCOTUS justices to leave DADT in place, according to the SCOTUS blog. The president’s argument centers on recent changes in the Pentagon’s discharge policy. It has been sold as granting “greater protection” to gays in the military, but the reality is rather different, note numerous sources, including noted gay-friendly MSNBC host Rachel Maddow. The policy change doesn’t stop the discharges, it simply requires that discharge decisions come from the highest levels of command.