Judge overrules U.S. military gay ban
A U.S. federal judge has issued a country-wide injunction stopping enforcement of the "don't ask, don't tell" policy, ending the military's 17-year-old ban on openly gay troops.
U.S. District Judge Virginia Phillips's landmark ruling Tuesday in Riverside, Calif., was widely cheered by gay rights organizations that credited her with getting accomplished what President Barack Obama and Washington politicians could not.
"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.
Department of Justice attorneys have 60 days to appeal. Legal experts say they are under no legal obligation to do so, and they could let Phillips's ruling stand.
Phillips declared the law unconstitutional after a two-week trial in federal court in Riverside. The case was brought about by the pro-gay Log Cabin Republicans.
She said the Log Cabin Republicans "established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights."
She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.
"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said.
She said Department of Justice attorneys did not address these issues in their objection to her expected injunction. They said such an abrupt change might harm military operations in a time of war.
They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue — not her court.
Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.
Legal experts say the Obama administration could choose to not appeal her ruling to end the ban — but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.
Tracy Schmaler, spokeswoman for the Department of Justice, said the government was reviewing Phillips's ruling Tuesday and had no immediate comment.
The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but also bans those who are openly gay. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.