http://voices.washingtonpost.com/federal-eye/2010/10/dont_ask_dont_tell_enforcement.html
'Don't ask, don't tell' enforcement struck down by judge
By Ed O'Keefe | October 12, 2010; 6:20 PM ET
Updated 5:36 p.m. ET

A California federal judge has issued an injunction stopping the military from enforcing its "don't ask, don't tell" policy, which bans gays and lesbians from serving openly in uniform.

U.S. District Judge Virginia A. Phillips ruled Tuesday that the policy "infringes the fundamental rights" of military service members and prospective service members and violates their rights to due process and freedom of speech.

Her ruling bars the Pentagon from enforcing or applying the policy and orders the military to immediately suspend and discontinue any investigations, discharges or other proceedings related to potential violations of the law.

To overturn the injunction, government lawyers would have to appeal to the 9th Circuit Court of Appeals and ask that the current policy be allowed to continue while the appellate judges consider the case.
The Pentagon plans to review the case and consult with the Justice Department, according to senior military officials. The Justice Department had no immediate comment, but the Obama administration is expected to appeal the decision.

The case was brought by the Log Cabin Republicans, a pro-gay rights group that includes current and former military members. The group argued during a two-week trial in July that the policy was unconstitutional and should be struck down.

Phillips agreed and last month granted a request for an injunction to stop the military from discharging gay service members while also allowing the government time to appeal the ruling.

The Justice Department argued the injunction should apply only to Log Cabin members, but Phillips ruled otherwise Tuesday.
The injunction "was the only reasonable solution," said Christian Berle, acting Executive director of Log Cabin Republicans. "These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution."

"This decision is also a victory for all who support a strong national defense," Berle said. "No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."

The Human Rights Campaign, a gay rights organization closely aligned with the Obama White House, said it would be a mistake for the Justice Department to appeal Phillips's decision.

The Servicemembers Legal Defense Network, which represents troops affected by the policy, said gays and lesbians serving in uniform "must proceed safely and should not come out at this time" since Tuesday's injunction could be reversed by the 9th Circuit. The group plans to closely monitor the status of several cases involving clients under investigation or facing discharges, it said.

The ruling comes as Congressional efforts to repeal the ban remain in doubt. A Senate test vote on a bill repealing the policy failed last month. It remains unclear whether Democrats will include the ban as part of an omnibus annual defense policy measure set for consideration during a lame-duck session after the midterm elections. But if it fails during the lame-duck, repeal could be difficult if Democrats lose control of the Senate to Republicans.
The injunction should not affect the Defense Department's ongoing study of how the military would repeal the ban, senior military officials said.

"Obviously, we'll watch with great interest to see how this develops," said one senior military official familiar with the study who was not authorized to speak publicly.

A final report is due to President Obama and senior military leaders by Dec. 1. Several moderate senators of both parties hope the Senate will wait to vote on repealing the ban until after the report is released.

If the Justice Department declines to appeal the ruling, the Defense Department would be required to issue instructions to military leaders on how to stop enforcing the policy, a senior military official said.

In a separate federal case closely watched by gay rights groups, the Justice Department announced Tuesday that it plans to appeal a decision ruling the federal ban on same-sex marriages unconstitutional.

A Boston federal district court judge said in July that the 1996 Defense of Marriage Act interfered with a state's right to define marriage. The case now moves to the 1st Circuit Court of Appeals.

Staff writer Greg Jaffe contributed to this report.