A federal judge in California this week issued an injunction that would bar the military from enforcing “Don’t Ask, Don’t Tell. ”
Judge Virginia Phillips ordered the military “immediately to suspend and discontinue any investigation, or discharge, separation or other proceeding that may have been commenced under” the military’s ban on openly gay servicemembers.
The U.S. Department of Justice has 60 days to appeal the order to the 9th Circuit Court of Appeals and has not yet indicated if it will make such a move. The same day Phillips handed down her injunction, the DOJ filed an appeal to the recent federal court ruling in Massachusetts that found part of the Defense of Marriage Act, the federal ban on same-sex marriage, unconstitutional.
In September, Phillips ruled that “Don’t Ask, Don’t Tell,” in place since 1993, was unconstitutional, as it violates free-speech and due-process rights of gays and lesbians. The case brought before Phillips was filed by the Log Cabin Republicans.
Phillips’ order on Tuesday also granted Log Cabin Republicans’ request to apply for the government to pay their legal fees in the case.
“We are extremely pleased with Judge Phillips’ decision granting an immediate and permanent injunction barring the U.S. military from carrying out its ‘Don’t Ask, Don’t Tell’ policy,” said Dan Woods, lead counsel in the LCR’s suit against the government, in a statement. “The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country.”
In a statement issued Tuesday, Alexander Nicholson, executive director of Servicemembers United, welcomed the ruling but noted that Phillips’ injunction is not a done deal.
“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,” Nicholson said. “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the 9th Circuit. If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-overdue decision to remain in effect.”
Aaron Tax, legal director of the Servicemembers Legal Defense Network, said the injunction and possible appeal by the government creates a complicated situation for the men and women currently under investigation related to “Don’t Ask, Don’t Tell,” and urged servicemembers to “proceed safely” and not come out publicly yet.
A group of 21 senators issued a letter to U.S. Attorney General Eric Holder Tuesday night, urging him not to appeal Phillips’ ruling.
“The federal court decision was a step in the right direction, and we are confident that the Senate will take the ultimate step by voting this fall on the fiscal year 2011 National Defense Authorization Act to permanently lift the ban on gays in the military,” the senators wrote. “Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts.”
Neither of Pennsylvania’s senators signed the letter, while New Jersey Sens. Bob Menendez and Frank Lautenberg both added their names to the memo.
A legislative effort to repeal “Don’t Ask, Don’t Tell” was halted by a Republican filibuster last month in the Senate. The repeal measure could come up for a vote again after the midterm elections.
Jen Colletta can be reached at [email protected].