hunter of justice

The week ahead: October 31, 2011

Tuesday, November 1 - New York - The NYC LGBT Bar Association is sponsoring a CLE program on The Impact of Marriage Equality in New York. The event will be held from 6 to 8 pm at the LGBT Community Center. Discussion "will focus on many of the areas potentially impacted by marriage equality in New York, including estate planning, taxation, divorce/dissolution, pre-nups & post-nups, and adoption/second-parent adoption," plus a special session on "Lessons Learned from Massachusetts." 

Wednesday, November 2 - Newark, NJ -  Nathaniel Frank will speak at Seton Hall Law School on "The Aftermath of Don't Ask Don't Tell: A Discussion of the Ongoing Challenges Faced by LGBT Service Members." Frank is the author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009).

Thursday, November 3 - Washington, DC - Lying in State tribute to Frank Kameny will be held at D.C.’s Carnegie Library at 9th and K Streets, N.W., between 3 and 8 p.m.

Also November 3 - Retired U.S. District Judge Vaughn R. Walker will deliver a lecture at Indiana University’s Maurer School of Law on the role of judges in dealing with politically controversial issues. 

Lawsuit seeking full separation pay for DADT discharges marches forward

Judge Christine Odell Cook Miller of the Court of Federal Claims denied the government's motion to dismiss a case brought by the ACLU on behalf of service members who received only partial separation pay because they were discharged on the ground that they were gay. The bulk of the decision in Collins v. United States addresses technical statutory questions pertaining to whether the Claims Court properly had jurisdiction of the case. Judge Miller ordered the parties to submit a proposed schedule for discovery and briefing of the motion to certify a class.

Ninth Circuit panel unanimously finds challenge to DADT moot; lower court opinion vacated

A Ninth Circuit panel shot down attempts to keep Log Cabin Republicans v. Panetta alive, ruling that the repeal of DADT has mooted the case challenging the law's constitutionality. This means that service members who have claims stemming from past discharges, such as those regarding benefits or re-enlistment, will have to bring separate cases. In and of itself, this is not of great legal significance; at least one group already has such a case pending in the Court of Federal Claims, and others can be filed in the future (depending in part on the outcome in the Court of Claims case).

More stinging was the Ninth Circuit's decision to vacate the District Court opinion issued in 2010 that had found DADT to be unconstitutional. The Court of Appeals order to vacate erases the trial court decision, so that as a matter of law, it is as if there never was a federal court decision finding DADT to be unconstitutional. This also means that the earlier decision is unuseable as precedent when individuals seek relief for past discharges.  No mincing of words here:

Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Having (emphatically) found the case moot, the panel did not reach the question of whether DADT was constitutional. One member did, however. Judge O'Scannlain, known as a conservative member of the court, filed a separate opinion declaring that he would uphold the constitutionality of DADT. Judge O'Scannlain attacked the District Court's reasoning that DADT burdened a fundamental right to private sexual conduct recognized in Lawrence v. Texas.

Lawrence does not establish that a member of the armed forces has a constitutionally protected right to engage in homosexual acts or to state that he or she is a homosexual while continuing to serve in the military...Lawrence did not establish any fundamental right - let alone any right relevant to the Don't Ask Don't Tell policy in the military.

Judge O'Scannlain then went on to accuse District Court Judge Virginia Phillips of having ignored established law in reaching her decision. In other words, even though the case was already and unanimously found to be moot, he went out of his way not only to blast the plaintiff's argument but also to call into question the trial judge's integrity. That's intense.

After the decision came down, lawyers for LCR issued a statement saying that they would seek rehearing en banc.

Judge to DoJ opposing equal discharge pay for gay soldiers: Good luck with that

The AP's coverage of the hearing yesterday in Collins v. U.S.:

Two days after repeal of the "don't ask, don't tell" policy against gays serving openly in the military, the Obama administration was in court Thursday opposing a lawsuit seeking full severance pay for those dismissed under the law. The American Civil Liberties Union is seeking class action status for 142 people who only got half pay after their discharge because of being gay. But the Justice Department asked the U.S. Court of Federal Claims to dismiss the case.

Judge Christine Odell Cook Miller said she probably will let the case continue and questioned why the government wouldn't pay now that the law has changed. "Your timing is exquisite - two days after the policy goes into effect eliminating `don't ask, don't tell,' here we are," she said as she took the bench. "I would consider this to be an unenviable argument to have at this time," she told the government's attorney later.

The case was filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins of Clovis, N.M. He was honorably discharged in 2006 after nine years of service when two civilians who worked with him at Cannon Air Force Base reported they saw him kiss his boyfriend in a car about 10 miles from the base. The decorated sergeant was off-duty and not in uniform at the time, according to the lawsuit...

The Air Force paid Collins $12,351 instead of the $25,702 he expected after his discharge.

Separation pay is granted to military personnel who served at least six years but were involuntarily discharged, part of an effort to ease their transition into civilian life. But the Defense Department has a list of conditions that trigger an automatic reduction in that pay, including homosexuality, unsuccessful drug or alcohol treatment or discharge in the interests of national security. That policy went into effect in 1991, two years before "don't ask, don't tell" became law.

The suit argues it is unconstitutional for the Defense Department to unilaterally cut the amount for people discharged for homosexuality.

The administration is not defending the merits of the policy. Instead, Justice Department lawyer L. Misha Preheim argued the defense secretary has sole discretion to decide who gets what separation pay and the court cannot rewrite military regulations.

Miller said she would issue a ruling on the government's motion to dismiss by Oct. 15 after full review of the Justice Department's arguments, but her preliminary decision was to deny the motion. She warned Preheim and a uniformed Air Force attorney also at the defense table that they should be prepared for the case to move forward. She said it's probably appropriate to certify it for class action status, if the government really thinks it's worth it to continue fighting the case. "I can't believe this is something the military wants to revisit now," she said.

Joshua Block, attorney with the ACLU lesbian gay bisexual and transgender project, said the class action would cover 142 people who got half pay for being discharged for homosexuality in the past six years - the time period covered by the statute of limitations - for a total payment of $2.1 million...

DADT dies, but its ghosts are close behind

Truth be told, the DADT policy has been twisting in the wind for at least a year, as the Pentagon added multiple levels of review for each proposed discharge, and then the order of the District Court in Log Cabin Republicans v. Panetta mandated no initiation of new cases. Still, today is THE day, the moment when the brass hats have finally acceded to the change that everyone knew was coming, but that none of them wanted to happen "on my watch."

And it is truly stunning - the U. S. military is now training its troops on their duty to accept and work with the gay men and lesbians in their units.

It is also true, however, that a number of problematic issues remain. Big ones include:

• There has been no progress on the acceptance of transgender service members, regardless of their abilities.
• Members who were discharged during the reign of DADT may have claims for lost pay or benefits.
• Article 125 of the Uniform Code of Military Justice - the sodomy law - remains in effect, although prosecutions are not brought in the absence of aggravating factors such as relations between a superior and a subordinate or in a public place.
• There may be some family benefits for service members that do not depend on marriage and which are extendable to partners and/or the children of partners. If Section 3 of DoMA is invalidated, the military will have to recognize same-sex marriages.

The biggest question mark, in my view, is how any incidents of harassment will be handled. Harassment of women (especially lesbians) has been at epidemic levels within the military for years. Occasionally, a  particularly flagrant example makes its way into the press, but most are ignored and many are apparently considered business as usual. 

The world will be watching for whether gay and lesbian service members become targets for physical or verbal assault. Military leaders should take this opportunity to crack down on the misogyny that fuels all forms of harassment.

Remembering Allan Berube as the termination of DADT nears

Allan Berube, who died in 2007, was a friend, a gifted community-based historian, and a wonderful man. His best known achievement was writing the pathbreaking history of gay and lesbian service members during World War II - Coming Out Under Fire. The book contains fascinating narratives from the people Allan interviewed and the letters and diaries he collected. Then, as now, military experience for gay men and lesbians was a mixed bag: it enabled them to leave hometowns behind and move into a structure where homosexuality was both forbidden and winked at. As Allan described, many gay and lesbian veterans settled in urban areas after the war and contributed to the embryonic stages of the lgbt rights movement.

Coming Out Under Fire also offers an incisive analysis of how the more liberal psychiatric profession, as manifest in the medical corps, lobbied their commanders to substitute the homosexuality-as-mental-illness model for the criminal law model that had been applied in World War I. As the postwar period moved into the 1950's, the mental illness rationale became in turn the basis for anti-gay policies in immigration law and the Civil Service. The Supreme Court upheld the immigration exclusion of "sex deviants" in Boutilier v. Immigration and Naturalization Service in 1967.

Allan's book still stands as the best documentation of that policy, its changing rationales and how its shape shifted to accommodate new social understandings of homosexuality. The book was the basis of a 1995 documentary of the same title that won a Peabody Award for excellence; the following year, Allan received a MacArthur Fellowship. His own papers are now at the Gay and Lesbian Historical Society of San Francisco, an institution he helped start. John D'Emilio and Estelle Friedman published a collection of his essays - My Desire for History - earlier this year.

If you celebrate the end of DADT tomorrow, drink an extra toast in memory of Allan.

The week ahead: September 19, 2011

Here's what coming up this week:

Monday, September 19 - Deadline for paper proposals to present at the next Feminist Legal Theory conference at Emory Law. The theme for the next session is "Structuring Resilience, which will examine "the political and theoretical possibilities inherent in thinking about justice and state responsibility in terms of human vulnerability.”  

Tuesday, September 20 - Truly a red letter day as DADT officially, finally, conclusively dies (Other issues related to the military will continue, however; see my post on Tuesday.)

Thursday, September 22 - The briefs from the United States (the original defendant) and the House Republican Legal Group (the only entity actively defending DoMA) are due in the First Circuit in Gill v. OPM

Also Thursday, September 22 - Oral argument before the Court of Federal Claims in Collins v. United States, in which plaintiff is challenging the policy under which service members discharged under DADT received half, instead of full, separation pay

Friday, September 23 - Deadline for paper proposals on any topic pertaining to legal feminism for the conference of the Feminist Legal Theory Collaborative Research Network to be held at GW Law School on January 4, 2012.

Re-enlistment uncertain for those discharged under DADT

The next wave of DADT-related litigation will be from those whom the military expelled. From today's N Y Times (excerpted):

...[M]any gay men and lesbians who were discharged under the “don’t ask, don’t tell” policy say they want to rejoin the service, drawn by a life they miss or stable pay and benefits they could not find in civilian life.

By some estimates, hundreds of gay men and lesbians among the more than 13,000 who were discharged under the policy have contacted recruiters or advocacy groups saying they want to re-enlist after the policy is repealed on Sept. 20...

Though the Pentagon says it will welcome their applications, former service members discharged for homosexuality will not be granted special treatment. They will have to pass physical fitness tests and prove that they have skills the armed services need right now. Some will have aged to the point that they will need waivers to get back in.

Even if they pass those hurdles, there is no guarantee that they will go back to their former jobs or ranks. And because the armed services are beginning to shrink, some will be rejected because there are no available slots.

People discharged under “don’t ask, don’t tell” who wish to return to service “will be evaluated according to the same criteria and requirements applicable to all others seeking re-entry into the military,” said Eileen Lainez, a Pentagon spokeswoman. “The services will continue to base accessions of prior-service members on the needs of the service and the skills and qualifications of the applicants.”

To be eligible for re-enlistment, former service members cannot have been discharged under “other than honorable conditions,” Ms. Lainez said. The majority of people released under the policy since 1993 — a significant number of them highly trained intelligence analysts and linguists — received honorable discharges.

As with all people who join the military, the reasons for wanting to rejoin vary widely. Some say they want to finish what they started, but on their own terms. Others point to the steady pay, good health care and retirement benefits. Still others talk idealistically about a desire to serve and be part of an enterprise larger than themselves...

The issue of rank could discourage many from rejoining. Because there are fixed numbers of jobs or ratings in each of the armed services, some people might have to accept lower ranks to re-enlist. And those allowed to keep their former ranks will still find themselves lagging their onetime peers.

[Michael] Almy, 41, [Jase] Daniels and another former service member have filed a lawsuit asserting that they were unconstitutionally discharged and should be reinstated, presumably at their former ranks. A former major, Mr. Almy, who was deployed at least four times to the Middle East, was among the highest-ranking members removed under the ban.

But even advocates for gay and lesbian troops say it might not be practical for the military to adopt a blanket policy of allowing all service members discharged under “don’t ask, don’t tell” to return to their previous ranks.

“You have to think long and hard from a policy perspective whether you want to put somebody who’s been out 5 or 10 years back into the same billet just because an injustice was done,” said Alexander Nicholson, executive director of Servicemembers United, a gay rights advocacy group. Mr. Nicholson, 30, who was discharged in 2002, is considering going to law school and trying to become an officer...

 

Will Log Cabin challenge to DADT continue?

You might wonder why a court case challenging a dead and almost buried law has a need to continue. The main reason lies in what one could call DADT's collateral damage: the ongoing claims by those who were discharged under it in the past to compensation and restitution of benefits.  The Ninth Circuit will hear argument this morning (California time) on whether the case, in which District Court Judge Virginia Phillips ruled that DADT was unconstitutional, has been mooted by the legislation that is slated to culminate in full repeal on September 20.

Following is a summary of the state of play (excerpted) from Metro Weekly:

...Mootness is a legal term that prevents courts from rendering advisory opinions because, under the Constitution, federal courts can only hear actual "cases" or "controversies."

Defense Department general counsel Jeh Johnson has defended the government's argument that repeal of DADT renders the LCR challenge moot, saying, "Overall, we take that view that once certification and repeal happens, that lawsuit becomes moot."

Later, on the day it was announced that the DADT Repeal Act-required certification had been made, he added, "That lawsuit is about the constitutionality of 10 U.S.C. 654. ... 10 U.S.C. 654 is being repealed. ... In 60 days, it will be off the books. So, that's why we say the lawsuit should be dismissed because the issue is moot."

LCR notes, however, that U.S. District Court Judge Virginia Phillips's judgment in the case included more than just the injunction on enforcement of DADT but also the declaration that DADT is unconstitutional.

Why does it matter whether the case is moot or not?

"Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges," LCR's Woods wrote in a filing to the court, "a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot."

In response, Johnson has said that other cases could be and have been filed to address those issues. The government has argued that because the case, in its view, is moot following repeal the case should be dismissed and Judge Phillips's ruling vacated.

In a news release issued in advance of today's arguments, Woods responded by saying, "The government is trying to remove the legal precedent established in our case so that anyone claiming back pay, reinstatement or a change in discharge status because he or she was discharged under an unconstitutional law would be unable to take advantage of the precedent we set."

The ignominious end of DADT

Below is the document signed today that will repeal DADT on September 20. Click on text to enlarge -

Playing DADT bingo

When the Ninth Circuit motions panel reinstated the injunction against enforcement of DADT in Log Cabin Republicans v. Panetta, it looked like the judiciary might end the policy before the DADT Repeal Act would.  Now that the Justice Department has persuaded the same court to stay the injunction again (with the caveat that no investigations or discharge proceedings may occur), my hunch is that the legislative/executive branch, with its process of training and preparation for repeal, will get to yell bingo. The Pentagon is saying that certification that the military is ready for repal will occur by late July or early August; final repeal takes effect 60 days later. One way or another, DADT will soon be history.  

The current state of play in the litigation is that the briefing on the motion for reconsideration of lifting the stay will continue until Friday. I would bet that the next ruling is issued very soon after all the briefs are filed, perhaps even late Friday. 

The motion for reconsideration filed by Justice also responded to an order from the Ninth Circuit panel who will hear oral argument on the merits September 1 (a different group than the motions panel). That court had ordered DoJ to state explicitly whether it was defending the constitutionality of DADT. DoJ responded that Congress had amended the statute, and that the only relevant question for prospective relief was whether DADT, as amended by the Repeal Act, was constitutional.  And, DoJ argued, it clearly is, both because courts should always defer to the military and because the Defense Department is in the process of following its painstakingly prudent repeal process. 

The brief also noted that the Department's argument in the Golinski case that sexual orientation classifications should be subject to heightened scrutiny does not apply in the military context. As it had stated in its brief in Golinski (FN 4), DoJ reserved the issue of standard of review when the challenge was to a mililary policy: "classifications in the military context present different questions than classifications in the civilian context."  

So, the roller coaster continues. But since the end of DADT is not in doubt, why worry about how we get there? 

One concern is that if the case becomes moot, the Court of Appeals will vacate or "erase" the district court decision. Plaintiffs and amici will stress to the court the importance of not doing that because the lower court decision, based on a full trial, contains important findings of fact and conclusions of law that could be useful in non-DADT cases. 

The second concern is that the plaintiffs in the LCR case sought relief beyond simply the end of the policy, and if the case ends when DADT ends, the court will not reach those aspects of the claim.   Still pending are issues of full relief for persons discharged in the past, payment of their benefits and bonuses, etc etc that flow directly from DADT. See the Lambda Legal amicus brief.

 Lastly, the role of the courts will be crucial for the future questions related to equal treatment for lgb servicemembers such as those described in this New York Times report. Questions about, for example, spousal benefits and housing for married gay couples will create the next round of litigation. Those issues were not raised in the LCR complaint, but they are just around the corner. And they will send the courts back to consideration of what the standard of review should be for sexual orientation classifications, specificallly in the context of military policy.

Ninth Circuit tells DoJ to fish or cut bait on DADT + Added commentary

In an order today, the Ninth Circuit panel assigned to hear Log Cabin Republicans v. Panetta directed the Department of Justice to declare whether it is going to defend the constitutionality of DADT and, if not, suggested that the court will either invite an amicus - probably Congress - to serve that function or will declare the case to be moot. 

After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654, which provides for the policy concerning homosexuality in the armed forces (i.e., Don’t Ask, Don’t Tell). The Government argues only that the Don’t Ask, Don’t Tell Repeal Act of 2010 (“Repeal Act”), Pub. L. No. 111-321, 124 Stat. 3515 (2010), is constitutional. But the district court found § 654, not the Repeal Act, unconstitutional. And § 654 remains the law of the land today, even though it is scheduled to be repealed once certain conditions are satisfied, which, as of the date of this order, has apparently not yet occurred.

Therefore, the central issue this court must address on appeal is whether the district court properly held that § 654 is unconstitutional. No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed. The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C § 530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011).

If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g). In light of the foregoing, (1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654; (2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2); (3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied. The responses to this order shall take the form of letters to the court no longer than ten pages or 2800 words, and shall be submitted within ten days of the date of this order... 

 UPDATED - Commentary on this order by Jon Davidson, Legal Director of Lambda Legal, after the jump.

Federal court injunction stops DADT discharges

In response to the injunction issued in Log Cabin Republicans v. Panetta, and put back into effect by the Ninth Circuit on Wednesday, the Defense Department has stopped discharges under Don't Ask Don't Tell. DoD is simultaneously proceeding with the certification process established in the legislation ending the policy, with completion expected within weeks. Repeal occurs 60 days after certification.

From a military press service:

In a memorandum for the secretaries of the military departments, Clifford L. Stanley, undersecretary of defense for personnel and readiness, directed the services to comply with the injunction immediately.

“It remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline. Further, because the injunction is once again in effect, the department will process applications for enlistment or appointment without regard to sexual orientation,” the memorandum read, in part...

Pentagon spokesman Marine Corps Col. Dave Lapan said lawyers in the Defense and Justice departments are reviewing the court’s ruling to determine what actions may follow...Lapan said four service members have been discharged under the law since October, the most recent of which was effective June 23. Any possible appeal to the injunction is “still being discussed and looked at,” he said.

Ninth Circuit reinstates injunction against DADT

Today's order in Log Cabin Republicans v. Panetta:

Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed. 

The court announced this order at approximately 3 pm Pacific time. There appears to be no response yet from the Department of Justice.  DoJ could appeal this to the Ninth Circuit en banc or, alternatively or in the event of a denial by the en banc court, to the Supreme Court.

 

DADT repeal process marches on

According to Defense Secretary Gates, training troops for the end of DADT and its related policies will begin "in a very few weeks." Gates told a press conference yesterday that he had a three-step plan to implement DADT repeal: 

1. Finalize changes in related regulations and policies, and get clearer definitions on benefits;
2. Prepare training materials for chaplains, lawyers, commanders and troops; and 
3. Conduct the training of servicemembers worldwide.

 From Stars and Stripes:

“We’re trying to get the first two phases of that process done as quickly as possible,” Gates said, adding he has instructed Undersecretary of Defense for Personnel and Readiness Clifford Stanley to accelerate his efforts. “My hope is that it can be done within a matter of a very few weeks so that we can then move on to what is the real challenge, which is providing training to 2.2 million people. And we will do that as expeditiously as we can.”

Many people may imagine that this training will consist of snarling drill sergeants attempting to conduct sensitivity sessions. I predict lots of jokes on late night TV as this goes forward. For me, thinking about which policies will change and how is far more interesting.

It's difficult for us civilians to wrap our minds around the kind of hyper-intrusive technicalities that comprise military regulations affecting service members' lives. Consider the following news report from Afghanistan, also in Stars and Stripes. It will be fascinating to watch how practices like this no-sex order will be affected when the institution has to admit - in a way that it never has, despite the bogus "don't ask" part of DADT under which silent gay service was supposedly ok - that gay people are in the military.

A new order signed by Maj. Gen. Jeffrey Schloesser, commander of Combined Joint Task Force-101, has lifted a ban on sexual relations between unmarried men and women in the combat zone.

General Order No. 1 outlines a number of prohibited activities and standards of conduct for U.S. troops and civilians working for the military in Afghanistan. Previously, under the regulation, sexual relations and "intimate behavior" between men and women not married to each other were a strict no-no. The regulation also barred members of the opposite sex from going into each other’s living quarters unless they were married to each other.

The new regulation warns that sex in a combat zone "can have an adverse impact on unit cohesion, morale, good order and discipline." But sexual relations and physical intimacy between men and women not married to each other are no longer banned outright. They’re only "highly discouraged," and that’s as long as they’re "not otherwise prohibited" by the Uniform Code of Military Justice, according to the new order.

Single men and women can now also visit each other’s living quarters, as long as everyone else who lives there agrees, and as long as visitors of the opposite sex remain in the open "and not behind closed doors, partitions or other isolated or segregated areas," according to the new regulation. Unmarried men and women who are alone together in living quarters must leave the door open, according to the new policy.

Men and women "will not cohabit with, reside or sleep with members of the opposite gender in living spaces of any kind," unless they are married or if it’s necessary for military reasons, the new policy states.

A cursory reading of the order would seem to suggest that unmarried men and women could have sex in their living quarters, as long as all other persons who live there agree, or if they left the door open, if they were otherwise alone. But that’s not the case, said Lt. Col. Rumi Nielson-Green, a spokeswoman for Regional Command East and Combined Joint Task Force-101.

"Sex in both scenarios … would be a chargeable offense under the UCMJ," Nielson-Green said, referring to the Uniform Code of Military Justice, in an e-mail to Stars and Stripes.

[Story continues after the jump -->]