San Diego A federal judge ordered the military Tuesday to immediately stop enforcing its ban on openly gay troops, bringing the 17-year “don’t ask, don’t tell” policy closer than it has ever been to being abolished.
Justice Department attorneys have 60 days to appeal the injunction but did not say what their next step would be.
President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court.
But U.S. District Judge Virginia Phillips’ injunction leaves the administration with a choice: Continue defending a law it opposes with an appeal, or do nothing, let the policy be overturned, and add an explosive issue to a midterm election with Republicans poised to make major gains.
Department of Justice and Pentagon officials were reviewing the judge’s decision and said they had no immediate comment.
“The whole thing has become a giant game of hot potato,” said Diane H. Mazur, a legal expert at the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal. “There isn’t anyone who wants to be responsible, it seems, for actually ending this policy.
“The potato has been passed around so many times that I think the grown-up in the room is going to be the federal courts.”
A federal judge in Tacoma, Wash., ruled in a different case last month that a decorated flight nurse discharged from the Air Force for being gay should be given her job back.
Phillips, based in Riverside, Calif., issued a landmark ruling on Sept. 9, declaring the policy unconstitutional and asked both sides to give her input about an injunction. The judge 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.
Gay rights groups hailed Phillips’ latest move, crediting her with what the administration and Washington have not been able to do.
“For a single federal judge to tell the government to stop enforcing this policy worldwide, this afternoon, with no time to think about it or plan for it, is almost unprecedented,” said Richard Socarides, a former Clinton White House adviser on gay rights.
“This judge was sure. There was nothing in her mind that could justify this even for one more day, one more hour.”
Gay rights advocates, however, tempered their celebrations, warning service members to avoid revealing their sexuality for fear that the injunction could be tossed out during an appeal and they would be left open to being discharged.
If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.
The Pentagon did not immediately comment, and a Justice Department spokeswoman said the government was reviewing the decision. Meanwhile, a group of 19 Democrat senators signed a letter sent to U.S. Attorney General Eric Holder urging him to let the injunction stand.
A “don’t ask, don’t tell” supporter said Phillips overstepped her bounds.
“The judge ignored the evidence to impose her ill-informed and biased opinion on our military, endangering morale, health and security of our military at a time of war,” said Wendy Wright, president of Concerned Women for America, a public policy group.
Wright said Phillips should have let Congress continue to investigate the impact of the repeal.