Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.