Obama won't oppose ruling weakening 'don't ask'

Bob Egelko, Chronicle Staff Writer

(05-19) 20:19 PDT -- The Obama administration, criticized by gay rights advocates for not following through on a campaign promise to repeal the "don't ask, don't tell" policy on military service, has taken a quiet step to allow a federal court in San Francisco to limit enforcement of the policy.

Without fanfare, the Justice Department told congressional leaders last month that it would not seek Supreme Court review of a May 2008 ruling by the Ninth U.S. Circuit Court of Appeals. The ruling cast doubt on the constitutionality of discharging gay and lesbian soldiers from the military for revealing their sexual orientation and required military officials to justify each dismissal.

President George W. Bush's administration had asked the court to reconsider the ruling but fell short of the majority vote needed for a new hearing in December. The Obama administration was given extensions of time to file a further appeal but let the deadline expire May 3.

The decision not to appeal was made "after extensive consultation with the Department of Defense," Attorney General Eric Holder said in the letter to Congress. He said the Justice Department will defend the policy when the case returns to a trial court to determine whether an Air Force officer should be discharged because of a lesbian relationship. In the meantime, the ruling is binding on federal courts in California and eight other Western states covered by the nation's largest appellate circuit.

"This decision makes it significantly easier to strike down at least the application of 'don't ask, don't tell' in many if not most cases," gay rights attorney Jon Davidson, legal director of Lambda Legal, said Tuesday. Davidson filed arguments supporting the Air Force officer in the case.

"We're happy that this is not going forward to the Supreme Court at this point," Davidson said. He said many opponents of the policy would prefer to steer clear of the high court during a period of international tension when the justices are likely to defer to military decisions.

"Don't ask, don't tell," approved by Congress and President Bill Clinton in 1993, replaced a ban on gays in the military. It bars the armed services from asking members about their sexual orientation but requires the military to discharge those who acknowledge being gay or engage in homosexual activity. At least 12,500 gays and lesbians have been discharged since the policy took effect.

President Obama said during last year's campaign that gays and lesbians should be allowed to serve openly in the military. But he has not made the issue a priority, and Defense Secretary Robert Gates told an interviewer in late March that any change was "down the road a little bit."

White House spokesman Ben LaBolt said Tuesday that Obama still wants the policy repealed and is consulting with military officials to see that "this change is done in a sensible way that strengthens our armed forces and our national security."

But until Congress changes the law, LaBolt said, "the administration will continue to defend the statute" in court.

The appeals court ruling, the first of its kind in the nation, came in the case of Maj. Margaret Witt of Spokane, Wash., a decorated flight nurse, who was suspended without pay in 2004 and discharged in 2007 after the Air Force learned of her longtime relationship with a civilian woman.

In reinstating Witt's lawsuit challenging her discharge, the appeals court relied on its interpretation of the U.S. Supreme Court's 2003 ruling overturning state laws against gay sex.

That ruling established a new level of constitutional protection for gays and lesbians, the three-judge appellate panel said. It said courts can no longer accept the government's claim that all openly gay service members weaken the armed forces, and instead must require the Air Force to prove that discharging Witt would promote troop readiness or unit cohesion.

E-mail Bob Egelko at begelko@sfchronicle.com.

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This article appeared on page A - 7 of the San Francisco Chronicle