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social sciences

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Don't Ask, Don't Tell  
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On December 15, 2010, the House of Representatives passed the bill authorizing repeal of DADT by a vote of 250 to 175.

On December 18, 2010, the Senate finally invoked cloture to cut off debate on the bill and end the filibuster. The vote was 63 to 33, with 57 Democrats (including two independents who caucus with the Democrats) joined by 6 Republicans to invoke cloture.

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The final Senate vote on the bill authorizing repeal took place later on December 18. It passed on a vote of 65 to 31, with 57 Democrats and 8 Republicans voting in favor and 31 Republicans voting against repeal. The bill was then sent to the President for his signature.

Soon after the vote to invoke cloture, President Obama issued the following statement: "By ending 'Don't Ask, Don't Tell,' no longer will our nation be denied the service of thousands of patriotic Americans forced to leave the military, despite years of exemplary performance, because they happen to be gay. And no longer will many thousands more be asked to live a lie in order to serve the country they love."

On December 22, 2010, at an elaborate ceremony to which many gay activists and servicemembers who had been discharged under DADT were invited, President Obama signed into law the bill authorizing repeal of Don't Ask, Don't Tell.

The bill did not itself repeal the Don't Ask, Don't Tell Act. Rather, it authorized repeal, contingent on the certification of the President, the Secretary of Defense, and the Chairman of the Joint Chiefs that ending the policy would not negatively affect military readiness. Once that certification was issued, the law authorized the Pentagon to put in place any necessary regulations to ensure an orderly transition. The DADT policy would remain in effect until 60 days after the certification.

Subsequent Developments

Meanwhile, the Log Cabin Republicans lawsuit continued in the Court of Appeals for the Ninth Circuit. Following the passage of the legislation authorizing repeal, the government asked the Court to hold the appeal in abeyance. The Log Cabin Republicans opposed this request, pointing out that as long as servicemembers could be discharged for their sexual orientation, the lawsuit was still relevant. Moreover, they also observed that there was no enforceable timeline for lifting the ban or even any guarantee that the ban would actually be lifted.

On January 28, 2011, the Court of Appeals rejected the government's request to suspend consideration of the lawsuit and set a new schedule for filing briefs. The government's opening brief and excerpts of record were filed on February 25, 2011; Log Cabin Republicans' answering brief and supplemental excerpts of record were filed on March 28, 2011; and the government's reply brief was filed two weeks later.

Significantly, the government in its briefs no longer argued that the Don't Ask, Don't Tell Act is constitutional. They merely pointed to the fact that repeal had been authorized and was underway.

On July 6, 2011, a three-judge panel of the U. S. Ninth Circuit Court of Appeals, including Chief Judge Alex Kozinski, granted a motion to lift the stay of District Judge Virginia Phillips' decision of October 12, 2010 in which she declared Don't Ask, Don't Tell unconstitutional and issued a permanent injunction against "enforcing or applying the 'Don't Ask, Don't Tell' Act." The Court also ordered that oral arguments in the case be held in the week of August 29, 2011.

On July 15, in response to an emergency appeal by the Justice Department, the Ninth Circuit modified the injunction in light of new information supplied by the military to the effect that the repeal process would be ready for certification in a matter of weeks. The new ruling enjoined the government "from investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

The modified injunction in effect ended enforcement of the DADT policy except that it allowed the military to refuse to accept or process applications from openly lesbian, gay, or bisexual people until the repeal process was completed.

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