WASHINTON -- The Pentagon has not ordered any of it's commanders in the field to suspend or discontinue any investigations or proceedings related to the discharge of homoesexual serivice members, despite a ruling from U.S. District Judge on Tuesday to do exactly that.
Defense Department officials say they are waiting for the Department of Justice and the Pentagon's General Counsel's office to review the ruling, even though Judge Virginia Phillips warned over a month ago that the injuction was coming.
Defense Secretary Robert Gates weighed in Wednesday, warning that a quick change in policy would have "enormous consequences" for troops and that any change in the law needs to come from Congress only after a Defense Department review of the matter is completed.
Yet a bill to repeal already failed in Congress this year and now one federal court has taken up the issue, declaring the gay ban unconstitutional. The Justice Department has 60 days to appeal the court's ruling and so far the Obama administration has given no idication of whether or not it will let the ruling stand. President Obama is well known for having promised to reverse the ban, but he's now in the difficult position of having to consider the potentially harmful political consequences of legislating from the bench.
Yet none of this explains why the Pentagon has so far failed to issue any guidance to the military that aheres to the court's ruling. The ruling clearly states that discharges based on sexuality "infringes the fundamental rights" of service members and that any ongoing cases need to be thrown out, yet the Pentagon is hesitant to act without first hearing what other lawyers from the Justice Department have to say. Pentagon officials also wont divulge the number of pending or ongoing cases there might be.
Even gay advocacy groups are telling soldiers not to reveal their homosexuality just yet, because it's unclear how the military would react during this 60 day period.
Pentagon Spokesman Col. Dave Lapan said Thursday there is a "defacto moritorium" on discharges as a result of the injunction, but no official or specific guidance to that effect has been dsitributed among the military.
That means no official moritorium other than the Judge's ruling has been issued and unless every commander in the field is aware of that case, investigations and proceedings related to the gay ban could continue. This raises the question of whether or not it is illegal for the Defense Department not to obey the injunction within that 60 day time period. The Pentagon's General Counsel, Jeh Johnson, could not be reached for comment.The bottom line comes down to a simple question: what would happen if a gay soldier declares his homosexuality today? Lapan's reponse: "I don't think we know yet."