POSTED: 9:59 p.m. HST, Oct 19, 2010
LAST UPDATED: 10:35 p.m. HST, Oct 19, 2010
SAN DIEGO — At least three service members discharged for being gay have begun the process to re-enlist after the Pentagon directed the military to accept openly gay recruits for the first time in the nation's history.
The top-level guidance issued to recruiting commands Tuesday marked a significant change in an institution long resistant and sometimes hostile to gays.
"Gay people have been fighting for equality in the military since the 1960s," said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara. "It took a lot to get to this day."
The movement to overturn the military's "don't ask, don't tell" policy gained speed when President Barack Obama campaigned on its repeal. The effort stalled in Congress this fall and found new life last month when a federal judge in California declared it unconstitutional.
The recruiting announcement came even as the Justice Department battles in the courts to slow the movement to abolish the 1993 Clinton-era policy.
U.S. District Judge Virginia Phillips rejected the government's latest effort Tuesday to halt her order telling the military to stop enforcing the law. Government lawyers have said they will appeal.
The Defense Department has said it would comply with Phillips' order and had frozen any discharge cases. Pentagon spokeswoman Cynthia Smith said Tuesday recruiters had been given top-level guidance to accept applicants who say they are gay.
AP interviews found some recruiters following the order and others saying they had not heard of the announcement.
Recruiters also have been told to inform potential recruits that the moratorium on enforcement of the policy could be reversed at any time, if the ruling is appealed or the court grants a stay, she said.
Gay rights groups were continuing to tell service members to avoid revealing that they are gay, fearing they could find themselves in trouble should the law be reinstated.
"What people aren't really getting is that the discretion and caution that gay troops are showing now is exactly the same standard of conduct that they will adhere to when the ban is lifted permanently," Belkin said. "Yes, a few will try to become celebrities."
An Air Force officer and co-founder of a gay service member support group called OutServe said financial considerations are playing a big role in gay service members staying quiet.
"The military has financially trapped us," he said, noting that he could owe the military about $200,000 if he were to be dismissed.
The officer, who asked not to be identified for fear of being discharged, said he's hearing increasingly about heterosexual service members approaching gay colleagues and telling them they can come out now.
He also said more gay service members are coming out to their peers who are friends, while keeping it secret from leadership. He said he has come out to two peers in the last few days.
An opponent of the judge's ruling said confusion that has come up is exactly what Pentagon officials feared, and shows the need for the judge to immediately freeze her order while the government appeals.
"Judge Phillips' refusal to grant an emergency stay is an incredible display of contempt for the constitution and our nation's military leaders who say overturning this law will be enormously disruptive for the men and women who defend our country," said Tony Perkins, president of the Family Research Council, a conservative advocacy group based in Washington that supports the policy.
The law's uncertain status has caused much confusion within an institution that has historically discriminated against gays.
Before the 1993 law, the military banned gays entirely and declared them incompatible with military service. There have been instances in which gays have served, with the knowledge of their colleagues.
Twenty-nine nations, including Israel, Canada, Germany and Sweden, allow openly gay troops, according to the Log Cabin Republicans, a gay rights group and plaintiff in the lawsuit before Phillips.
The Pentagon guidance to recruiters comes after Dan Woods, the group's attorney, sent a letter last week warning the Justice Department that Army recruiters who turned away Omar Lopez in Austin, Texas, may have caused the government to violate Phillips' injunction. Woods wrote that the government could be subject to a citation for contempt.
The White House has insisted its actions in court do not diminish Obama's efforts to repeal the ban.
In their stay request, government lawyers argue Phillips' order would be disruptive to troops serving at a time of war. They say the military needs time to prepare new regulations and train and educate service members about the change.
Phillips has said her order does not prohibit the Pentagon from implementing those measures.
The judge also said safeguarding constitutional rights outweighed the government's unproven concerns of the order's impact on military readiness and unit cohesion.
"Defendants merely conclude, without explanation, that 'confusion and uncertainty' will result if the injunction remains in place," she said in her ruling Tuesday. "Thus, defendants have failed to establish they are likely to suffer irreparable injury if a stay is not granted."
Her decision will likely send the case to the 9th Circuit Court of Appeals in San Francisco.
Douglas Smith, spokesman for U.S. Army Recruiting Command based at Fort Knox, Ky., said even before the ruling recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.
"U.S. Army Recruiting Command is going to follow the law, whatever the law is," Smith said.
The message, however, had not reached some recruiting stations.
In Pensacola, Fla., Marine Sgt. Timothy Chandler said he had been given no direction. "As far as we are concerned everything is the same. The policy hasn't changed," he said, as others in the office nodded.
Chandler said no one had come to the small office questioning the policy or asking about being openly gay and serving.
Recruiters at the Navy office next door referred all media questions to the Pentagon. Air Force recruiters said they were not authorized to talk to the media. Army recruiters referred questions to another office in Mobile, Ala.
In New York's Times Square, Dan Choi, a 29-year-old Iraq War veteran who was discharged for being gay, began the process to enlist in the Army.
In San Diego, Will Rodriguez, a former Marine who was discharged under the policy in 2008, gave his contact information to recruiters. He said they told him there were currently no slots for Marines who had served and want to re-enlist.
He said they told him they would call him in January when more slots could open.
Randy Miller, 24, of Stockton, Calif., was honorably discharged from the Army under "don't ask, don't tell" in 2006. He said he was turned away from the local Army recruiting station Tuesday by two staff sergeants who said they had not heard about the Pentagon guidance.
Miller then went to the Navy recruiter's office next door and was allowed to start the process of joining.
Several service members discharged under the policy told The Associated Press they plan to try to rejoin this week.
Flaherty reported from Washington. Associated Press writers Kristin M. Hall in Nashville, Tenn., Lisa Leff in San Francisco, Melissa R. Nelson in Pensacola, Fla., Verena Dobnik in New York, Ed White in Detroit, John Milburn in Topeka, Kan., and Brian Witte in Annapolis, Md., contributed to this report.