Judge rejects Obama's 'don't ask, don't tell' argument

McClatchy NewspapersOctober 20, 2010 

WASHINGTON — A district court judge Tuesday rejected the Obama administration's claims that allowing gays and lesbians to begin openly serving in the military could hurt their efforts to study the effects of repealing the ban.

If the government appeals it would go to the 9th U.S. Circuit Court of Appeals next and ultimately to the U.S. Supreme Court. But there is no certainty on how either court would rule.

Last month, U.S. district court Judge Virginia Phillips promised a injunction against "don't ask, don't tell" after she found that the 17-year-old policy, which bars gays and lesbians from disclosing their sexual orientation, violated service members' First Amendment rights; she issued that injunction last week.

The government vowed to appeal and asked Phillips to consider a stay. The case was brought by Log Cabin Republicans, which represent gay GOP members.

In her decision Tuesday, Phillips said the government failed to show that her injunction hurt a Defense department study on the effects of repealing the ban, which is supposed to be completed by Dec. 1. In her six-page ruling, she called the governments argument vague.

Although Defendants objected to the issuance of the injunction and its scope, they provided no evidence regarding the alleged disruption or need to revise dozens of policies and regulations, as described in the Declaration of Clifford L. Stanley," Under Secretary of Defense for Personnel and Readiness, she wrote, adding later: The injunction would not impede the Defendants' stated goals of amending policies and regulations and developing education and training programs.

She ruled that the government concluded without explanation, that confusion and uncertainty will result if the injunction remains in place.

Although President Obama has promised dont ask dont tell will end during his administration, he wants Congress, not the courts to repeal the law. It is a delicate balance for the administration politically speaking, less than two weeks before the mid term elections.

Log Cabin Republicans celebrated the decision and repudiated the president's stance.

"Judge Phillips is right to stand with service members by rejecting President Obamas request to continue this discriminatory policy," said R. Clarke Cooper, Executive Director of Log Cabin Republicans. "It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.

"As this past week has shown, our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom. As Commander in Chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security. The president has said that "don't ask, don't tell" will end on his watch, but is currently standing in the way of its demise. Log Cabin Republicans will continue to fight this policy no matter how many obstacles he puts in the way."

Also Tuesday, the Pentagon reiterated that recruiters would not turn away gay applicants. But both the Pentagon and some gay advocacy groups urged current and potential service members to not reveal their sexual orientation because of the possible pending appeals.

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