Judge Virginia Phillips Orders Immediate Halt to 'Don't Ask Don't Tell'

A judge in California approved an injunction against "don't ask don't tell."

October 12, 2010, 4:13 PM

WASHINGTON, Oct. 12, 2010— -- A federal judge in California today ordered an immediate, worldwide halt to the enforcement of the "don't ask, don't tell" policy that bans openly gay and lesbian individuals from serving in the U.S. military.

U.S. District Court Judge Virginia Phillips ruled last month that the policy is unconstitutional and should be ended immediately. But Phillips gave the Obama administration two weeks to make the case against a worldwide injunction.

Today she rejected the government's argument and ordered the Secretary of Defense to stop "enforcing or applying" the policy entirely, including the immediate suspension of any investigations of gay service members currently underway.

"The Court found the Act ["don't ask don't tell"] unconstitutional on its face; accordingly, the resulting remedy should be should be as broad as necessary to achieve the relief Plaintiff sought," Phillips wrote.

The Department of Justice, which has been defending the policy in court, still has 30 days to appeal the ruling and injunction. But the policy is now effectively suspended unless or until the Department seeks a stay from an appeals court.

A Justice Department spokesperson said officials were reviewing the ruling.

"We have just learned of this ruling. We are now studying it and we will be in consultation with the Department of Justice," said Pentagon spokeswoman Cynthia Smith.

Advocates for gay and lesbian service members meanwhile praised Judge Phillips' decision

"No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination," said a statement from the Log Cabin Republicans, a conservative gay rights group that first brought the suit.

"This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed," said Aaron Tax with the Service Members Legal Defense Network. But "the law still has a chance of being repealed in the lame duck session of Congress."

The group is warning gays and lesbians currently in the military to "proceed safely" and not to come out at this time.

Lawyers for the Obama administration had questioned whether Phillips had the authority to order a worldwide end to the policy. "A court should not compel the executive to implement an immediate cessation of the 17-year policy without regard for any effect such an abrupt change might have on the military's option, particularly at a time when the military is engaged in combat operations around the globe," they wrote.

But the lawyers stopped short of indicating whether or not the government planned to appeal Phillips' ruling.

Judge Phillips said that she had "kept well in mind" the "overriding principle" of judicial deference to Congress' authority to set policies for the military, but that the plaintiffs in the case had demonstrated that the policy violated their rights under the Fifth and First Amendments.

"Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement," she wrote.

DADT Ruling Puts Obama Administration in Bind

Phillips' ruling has put the administration in an awkward position. On the one hand it was defending the statute in Court, on the other hand it was hoping Congress would act to repeal the policy.

The House approved a repeal as part of the annual defense budget earlier this year, but the Senate failed to approve the measure in a vote last month.

"The Justice Department is defending the statute as it traditionally does when Acts of Congress are challenged," said an agency spokesperson in a statement about the case.

And White House press secretary Robert Gibbs has said the administration's legal defense of the law "in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT."

President Obama has previously called the ban on openly gay and lesbian service members a "discriminatory policy" and pledged that ending it would be a promise "that this administration is going to keep."

Justice Department lawyers appeared to merely go through the motions when the "don't ask don't tell" case went to trial before Judge Phillips in July, calling no witnesses or offering other evidence for its defense.

"It'll be an interesting decision for our president to decide whether to appeal this case," the plaintiffs' attorney, Dan Woods, told the Associated Press. "He's said that 'don't ask, don't tell' weakens national security, and now it's been declared unconstitutional. If he does appeal, we're going to fight like heck."

The case was brought in 2004 by the Log Cabin Republicans, which argued that the military's 17-year-old policy violates gay service members' rights to free speech, open association and due process. Judge Phillips agreed.

The Log Cabin Republicans estimate 13,500 gay military service members have been ousted under the rules since 1994.

Phillips' decision marked the first time a federal judge has found the law unconstitutional on the grounds of due process and first amendment.

Seventy-five percent of Americans say gays who disclose their sexual orientation should be allowed to serve in the military, according to a recent ABC News/Washington Post poll, up from 44 percent 17 years ago.

ABC News' Luis Martinez and Jason Ryan contributed to this report.

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