Supreme Court declines to halt enforcement of ‘don’t ask, don’t tell’

The Supreme Court refused Friday to halt enforcement of the military’s “don’t ask, don’t tell” policy while the constitutionality of the law is under appeal in the federal courts of California.

The justices in a brief order denied an appeal filed by the Log Cabin Republicans, who insisted the military’s 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 means it will be a year or two at least before the constitutional challenge can be finally resolved. Congress could vote to repeal the “don’t ask” law in the upcoming lame-duck session, but Senate Republicans have so far blocked the issue from coming to a vote.

Six years ago, the Log Cabin Republicans sued and contended the policy was unfair to gays who wanted to serve in the military and 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 remain 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 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.

The government appealed Phillips’ ruling that declared “don’t ask, don’t tell,” unconstitutional and the 9th Circuit is expected to hear the case early next year.

The Obama administration has been sharply criticized by gay-rights advocates for appealing the district court’s ruling. In their legal briefs, Justice Department lawyers stressed that the “don’t ask” policy was written into federal law in 1993 and cannot be removed by the administration. Under the Constitution, the president has the duty to ensure the laws are “faithfully executed.”

Polls have found that most Americans favor repealing the ban and allowing openly gay persons to serve in the armed forces. By Dec. 1, Defense Secretary Robert M. Gates is due to receive a survey of military members and their families on the issue, and early reports say most respondents would not be troubled by having openly gay troops in the ranks.

david.savage@latimes.com