WASHINGTON — With Congress stalled on whether to repeal "Don't Ask, Don't Tell," some proponents of eliminating the long-standing prohibition on gays and lesbians in the military now believe their best hope lies with an increasingly supportive court system.
Lawyers for the Log Cabin Republicans, a group of gay GOP members, say they expect a U.S. district court judge in California soon to issue a permanent injunction that would prohibit the military from enforcing the ban throughout the United States. The judge, Virginia Phillips, a Bill Clinton appointee, last month ruled that the prohibition is unconstitutional in a lawsuit brought by the Republican group.
"Working through Congress and the administration hasn't worked. It has failed. The president has done nothing but talk," said Dan Woods, the lawyer who brought the case on behalf of the Log Cabin Republicans. "The courts have to take over because Congress and the president have failed to act."
Other proponents of repeal say the courts are a poor way to overturn the ban. Appeals of any permanent injunction would likely take years to resolve, and the current Supreme Court seems an unlikely ally.
"The statute is in place until there is finality," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which over the past 17 years has represented more than 10,000 soldiers, sailors and Marines faced with military expulsion because of accusations of homosexuality. "Appeals will mean they will likely be tied up in the courts for years. All eyes are on the Senate where they should be."
Still, an injunction by Phillips and an appeal by the Obama administration might quickly bring the issue to the Supreme Court, which up to now hasn't taken a direct role in the "don't ask, don't tell" debate. Last year, the court declined to hear a case, Pietrangelo v. Gates, brought by Sarvis' organization against Secretary of Defense Robert Gates on behalf of James E. Pietrangelo II, a former Army captain discharged from the military for being gay.
The eagerness for court intervention by at least some advocates of repealing the ban on homosexuals in the military underscores the significance of two events that took place last month.
The first was Phillips' 85-page ruling that "Don't Ask, Don't Tell" was unconstitutional because, she found, the different treatment gays received in the military violated constitutional requirements for due process as well as the First Amendment right to free association. Phillips said that far from being necessary for military readiness the policy has a "direct and deleterious effect" on the armed services.
In her opinion, Phillips acknowledged that the courts must show Congress deference when it comes to the military. But she quoted a Supreme Court case in ruling that "deference does not mean abdication."
Then, after months of back and forth, the Senate refused to consider the defense authorization bill after repeal proponents tacked on an amendment to end "Don't Ask, Don't Tell." The 56-43 vote not to consider the bill — a 60-vote majority was required — was a rarity for a bill that usually wins broad bipartisan support.
The Senate is expected to take up the authorization bill again after the November election. Members of Congress expressed little concern about Phillips' ruling.
"I would hope the courts would understand that setting the rules for military service has traditionally been a congressional function, but it's their job to see if we've overstepped the Constitution," said Sen. Lindsey Graham, R-S.C., a member of the Senate Armed Services Committee. "That's the way our legal system works, and I don't have a problem with that."
Sen. John McCain, R-Ariz., who led last month's effort to defeat the defense authorization bill, was more direct. Asked if Phillips had overstepped her authority, he said simply, "Of course, of course."
For its part, the Obama administration has said it favors congressional action over the courts. In a filing last week before Judge Phillips, the Justice Department said: "A court should not compel the Executive to implement an immediate cessation . . . particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe."
But the administration still favors repeal. On the day the Justice Department made the filing, White House spokesman Robert Gibbs issued a statement saying President Barack Obama still favored "Don't Ask, Don't Tell's" repeal.
"This filing in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT _- indeed, it clearly shows why Congress must act to end this misguided policy."
Woods, however, says it seems clear Congress won't act. The bill is unlikely to fare any better after the November election, he said, and with analysts predicting a more conservative Congress taking office in January, repeal advocates need to accept that the courts are the best avenue for repeal.
"The court system is the best and quickest way to address this," he said.
CORRECTION: This story originally said the Senate vote not to take up the defense authorization bill was 56-48. It was 56-43.
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