Judge orders military to stop enforcing 'don't ask, don't tell'

McClatchy NewspapersOctober 12, 2010 

WASHINGTON — A California federal judge Tuesday ordered the U.S. military to stop enforcing "don't ask, don't tell" worldwide, calling it unconstitutional.

It remains unclear, however, whether the military would begin obeying the injunction by U.S. District Judge Virginia Phillips immediately. Pentagon officials said that department lawyers were reviewing the ruling, as was the Justice Department.

President Barack Obama has pledged to end the policy, which permits gays and lesbians to serve in the military only if they keep their sexual orientation private. Otherwise they're to be discharged.

The ruling presents Obama with a delicate choice. Appealing the decision would offend gays and civil libertarians, who are important Democratic constituency groups. Letting the decision stand unchallenged could intensify conservative opposition to his party and him with congressional elections three weeks away. Polls show widespread rejection of the Democrats' agenda as too liberal.

Last month Phillips, a Bill Clinton appointee, ruled that the prohibition is unconstitutional in a lawsuit brought by lawyers for the Log Cabin Republicans, a gay group. In her 85-page ruling, Phillips said she'd issue an injunction, which she did Tuesday.

Log Cabin Republicans "established at trial that the 'don't ask, don't tell' act irreparably injures service members by infringing their fundamental rights," Phillips wrote, adding that the law violates the First Amendment.

The federal government has 60 days to appeal her decision. The Obama administration had said previously that the law should be repealed by Congress, not the courts, but it declined to say Tuesday whether it would appeal the ruling.

"The Department of Justice is studying the court's ruling. Any specific questions about this pending litigation should be directed to the Department of Justice," the White House said in a statement.

At the Pentagon, "Our lawyers, in consultation with the Department of Justice, are looking at it now to see what it means," said spokesman Col. David Lapan.

Gay-rights advocates hailed the ruling as the end of the 17-year-old policy.

"The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence," Joe Solmonese, the president of the Human Rights Campaign, a gay-rights advocacy group, said in a statement. "The president has said this law harms our national security, and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination."

Log Cabin Republicans celebrated.

"We are extremely pleased with Judge Phillips' decision granting an immediate and permanent injunction barring the U.S. military from carrying out its 'don't ask, don't tell' policy. The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country," attorney Dan Woods, who brought the case on behalf of the Log Cabin Republicans, said in a statement.

The injunction could increase pressure on Congress to repeal the law. Last month, the Senate set aside the defense authorization bill after repeal proponents tacked on an amendment to end "don't ask, don't tell." Republicans opposed the amendment and blocked efforts to end debate and vote on the bill.

The Senate is expected to take up the bill again, with a repeal amendment attached, after the Nov. 2 elections.

The injunction and an appeal by the Obama administration could quickly bring the issue before the Supreme Court, which hasn't addressed the matter. Last year, the court declined to hear a case, Pietrangelo v. Gates, brought against Secretary of Defense Robert Gates on behalf of James E. Pietrangelo II, a former Army captain whom the military discharged for being gay.

ON THE WEB

U.S. District Judge Virginia Phillips' Sept. 9 ruling

The injunction

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McClatchy Newspapers 2010

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