Riverside, Calif. A federal judge in Riverside who declared the military’s “don’t ask, don’t tell” policy banning gays unconstitutional issued a tentative ruling Monday rejecting the federal government’s request to stay her decision while the case is appealed.
U.S. District Judge Virginia Phillips said the government failed to provide sufficient proof that her injunction halting the policy would cause “irreparable harm” to the military or that the government’s appeal would be successful. Phillips plans to issue her final decision early today.
Paul Freeborne of the U.S. attorney’s office argued that the injunction immediately halting enforcement of the policy, which bans gays and lesbians from serving in the military openly, jeopardized national security.
He urged Phillips, who issued the injunction last week, to set aside her decision while the government appealed the ruling and injunction to the 9th U.S. Circuit Court of Appeals.
In a sworn declaration submitted to the court, Clifford L. Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would undercut the Pentagon’s work surveying military commands around the world to determine how best to create a new policy that allows people who are openly homosexual to serve.
“The stakes are so high, and the potential harm so great, that caution is in order,” he said.
But Phillips on Monday rejected that argument. The judge said her ruling ordered an end to all discharge and separation proceedings under “don’t ask, don’t tell,” but did not prohibit the military from crafting a new policy or educating military personnel about serving side by side with openly gay service members.
Phillips also noted that the government failed to produce any evidence during the two-week trial that showed allowing gays in the military would harm military readiness or troop cohesion.
“The arguments by the government are vague. ... and belied by the evidence produced at trial,” Phillips said Monday. She also chastised the federal government lawyers for not filing their objections when she was considering the injunction.
In her initial Sept. 9 ruling, Phillips found that ban on gays had a “direct and deleterious effect” on the armed services, including the dismissal of critical military personnel, such as translators. She noted that the Pentagon also violated the policy when it saw fit, routinely delaying the discharge of service members suspected of violating the law until they completed their deployments in Iraq and Afghanistan.
During Monday’s hearing, Freeborne also argued that the judge exceeded her authority by issuing an injunction worldwide, as opposed to limiting it to the plaintiffs in the case or within her Southern California district. That argument will be a primary aspect of the government’s appeal.
The ruling has put President Barack Obama in a tricky spot. He strongly opposes the “don’t ask, don’t tell” policy, once calling it a threat to national security, but said his administration has an obligation to defend laws passed by Congress.
Meantime, the military has suspended enforcement of the policy while Phillips’ injunction is in place.
The challenge to the “don’t ask, don’t tell” policy was filed in 2004 by the Log Cabin Republicans, the largest gay GOP political organization. It was the first successful broad-based constitutional challenge to the policy since Congress enacted it in 1993.
Dan Woods, the lead attorney for the Log Cabin Republicans, argued during Monday’s hearing that lifting the judge’s injunction would “deprive very patriotic Americans of their constitutional rights” and urged the judge to keep it in place.
Former President Bill Clinton adopted the “don’t ask, don’t tell” policy in 1993 as a reform to the military’s practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve. More than 13,000 service members have been discharged under the policy.
The U.S. House of Representatives voted to repeal the policy last spring, contingent on the outcome of a Pentagon study to determine whether it can adapt to the change without harming military readiness. The study is expected to be completed by December. The proposal was blocked on the Senate floor, although it may be reconsidered during a lame-duck session after the November election.