UPDATE: Should a court-ordered injunction requiring the military to stop enforcing the “don’t ask, don’t tell” policy be put on hold pending an appeal by the U.S. government? That’s the question now facing U.S. District Court Judge Virginia A. Phillips, who recently declared “don’t ask, don’t tell” (DADT) to be unconstitutional and issued an injunction on Oct. 12 requiring the military to stop enforcing it immediately.
“The stakes here are so high, and the potential harm so great, that caution is in order,” said Undersecretary of Defense for Personnel and Readiness Clifford Stanley in a 48-page filing on Oct. 14. Although the Pentagon said last week it was abiding by a court injunction not to discharge openly gay men and women in the U.S. military, Stanley argued that during the appeal process, “the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years,” particularly in wartime. “An injunction before the appeal in this case has run its course will place gay and lesbian service members in a position of grave uncertainty,” he said.
Stanley argued that if the court’s decision were later reversed, the military would be faced with the question of whether to discharge any service members who have revealed their sexual orientation, as a result of the court’s decision and injunction. A decision by Phillips on the government’s request for an emergency stay could come as early as today.
Original story: A federal judge in California affirmed an earlier decision declaring as unconstitutional the U.S. government’s ban on gay and lesbian soldiers serving openly in the military on Oct. 12. The judge granted an immediate and permanent injunction barring further enforcement of the controversial law.
U.S. District Court Judge Virginia Phillips also ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the “don’t ask, don’t tell” policy (DADT). The government now has 60 days to file an appeal.
“These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution,” says Christian Berle, acting executive director of Log Cabin Republicans, the gay-rights organization that filed the initial 2004 lawsuit to stop enforcement of the ban. “It is imperative that their constitutional freedoms be protected as well. No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination.”
On Sept. 9, Phillips first ruled that DADT violated the First Amendment and due-process rights of gay and lesbian service members. In her 85-page opinion, Phillips ordered a permanent injunction barring enforcement of DADT but gave the Justice Department until September 23 to object to that order. The full ruling can be read here.
Justice Department attorneys filed their objection shortly thereafter, saying the proposed worldwide injunction was “untenable,” and accused Phillips of overstepping her bounds. In their objection, the Justice Department argued that Phillips should limit any injunction to the 19,000 members of the Log Cabin Republicans, the gay-rights organization that filed the lawsuit to stop enforcement of the ban.
“A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” attorneys said in their objection, filed in U.S. District Court in California.
But in her three-page injunction yesterday, Phillips asserted that DADT “infringes the fundamental rights of United States service members and prospective service members and violates the substantive due-process rights guaranteed under the Fifth Amendment to the United States Constitution.
Furthermore, she enjoined the U.S. government and the secretary of defense “from enforcing or applying the ‘don’t ask, don’t tell’ act and ordered them to immediately suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced,” under the law.
Attorney Dan Woods, who is representing the Log Cabin Republicans, said the ruling “reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country.”
Phillips’ latest ruling comes weeks after the U.S. Senate rejected a plan to end a 17-year-old law that bans gays and lesbians from serving openly in the military. Senators failed to get the 60 votes needed to end a filibuster by Sen. John McCain and pave the way for an actual vote on ending the ban.
DADT was signed into law in 1993 by former President Bill Clinton. Under the 1993 policy, the military is prohibited from asking about the sexual orientation of service members. However, 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.
Repealing the 1993 ban on gays and lesbians serving in the military was one of President Barack Obama’s key campaign promises.
But while gay-rights advocates were celebrating this victory, the Obama administration, in an unrelated matter, appealed another court ruling striking down the 1996 Defense of Marriage Act, according to Reuters. Earlier this year, a Massachusetts court found the federal law banning same-sex marriage violated the constitution. According to the report, the Obama administration Tuesday filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, the federal law defining marriage as between a man and a woman.