Obama Justice Department Weighs Appeal in 'Don't Ask, Don't Tell' Case

Obama says "don't ask, don't tell" "discriminatory" but defended it in court.

September 10, 2010, 9:20 AM

WASHINGTON, Sept. 10, 2010— -- The ruling by a federal judge in California that the military's "don't ask, don't tell" policy is unconstitutional has put the Obama administration in a political bind, caught between a duty to defend established law and a promise to have the law overturned.

U.S. District Judge Virginia Phillips ruled Thursday that the policy violates the rights of gays and lesbians, and harms military readiness and unit cohesion. And she said she plans to issue a permanent injunction barring the military from enforcing the policy in about two weeks.

Phillips has asked both sides to weigh in on the injunction and asked the government to indicate whether it plans to appeal.

The Justice Department, which has been defending the law, has not indicated how it will proceed. Government lawyers are reviewing the decision.

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."

But he has also said that only Congress has the power to repeal the law and, until it does, he is bound to defend it in court.

Justice Department lawyers defended "don't ask don't tell" before Judge Phillips when the case went to trial in July, but they appeared merely to go through the motions, calling no witnesses or offering up other evidence for its defense and arguing only that Congress should decide on policy rather than a court.

"It'll be an interesting decision for our president to decide whether to appeal this case," the plaintiffs' attorney, Dan Woods, told AP. "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 House voted in May to conditionally repeal the policy as part of a vote on a defense spending bill. The Senate has yet to consider the measure but a vote could come this year.

"This is on a list of items that we could consider this upcoming work period. We will need Republican cooperation to do so," said Regan Lachapelle, spokeswoman for Senate Majority Leader Harry Reid.

And although several top military officials, including Defense Secretary Robert Gates and Chairman of the Joint Chiefs Adm. Mike Mullen, have endorsed a repeal, Pentagon officials insist that the policy remains in effect as long as it is law.

First Federal Ruling Against 'Don't Ask, Don't Tell'

The case was brought in 2004 by the Log Cabin Republicans, a political organization advocating equal rights for gays and lesbians. The group has argued that the policy, which was implemented in 1993, violates gay service members' rights to free speech, open association and due process.

Judge Phillips agreed.

"The Don't Ask Don't Tell infringes the fundamental right of United States service members in many ways. ... The Act denies homosexuals serving in the Armed Forces the right to enjoy 'intimate conduct' in their personal relationships ... to speak about their loved ones while serving their country in uniform. ... It discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality," she wrote.

"Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the government's important interests in military readiness and unit cohesion," Phillips wrote. "Defendants failed to meet that burden."

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

The decision marks the first time a federal judge has found the law unconstitutional on the grounds of due process and first amendment.

"With this legal victory in hand, Congress is right now in a perfect position to strengthen our national security by ending a law that has discharged thousands of capable service members," said Joe Solmonese, president of the Human Rights Campaign, a gay and lesbian advocacy group. "The Senate can and should vote in the next few weeks to repeal 'Don't Ask Don't Tell.'"

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, Jason Ryan and Steven Portnoy contributed to this report.

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