- The Washington Times - Tuesday, October 12, 2010

A federal judge in California on Tuesday ordered the U.S. military to stop enforcing the 17-year-old policy banning openly gay service members, the policy known as “don’t ask, don’t tell.”

Judge Virginia Phillips issued a permanent injunction against “don’t ask, don’t tell” from her court in Riverside, Calif., declaring that the policy “infringes the fundamental rights of United States service members and prospective service members.”

Her injunction applies to U.S. military personnel serving throughout the world. She also ordered the federal government and military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding that may have been commenced under the ‘Don’t Ask, Don’t Tell’ Act.”

The judge had ruled the policy unconstitutional in a Sept. 9 decision, but delayed issuing the injunction for a month in order to give the Obama administration’s Justice Department an opportunity to respond.

Justice Department spokeswoman Tracy Schmaler said Tuesday the decision was under review. The department has 60 days to file an appeal.

Log Cabin Republicans, the party’s most prominent gay rights organization, filed the lawsuit in 2004 and hailed Tuesday’s ruling as a “complete and total victory.” But the group warned that the case isn’t yet closed, noting that the administration may still appeal the 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 Christian Berle, deputy executive director of Log Cabin Republicans.

Supporters of “don’t ask, don’t tell” denounced the ruling as a blatant example of judicial activism undercutting the democratic process. The Senate last month debated legislation to repeal “don’t ask, don’t tell” — already approved by the House of Representatives — as an amendment to a defense-authorization bill, but proponents could not overcome a filibuster.

“Once again, an activist federal judge is using the military to advance a liberal social agenda, disregarding the views of all four military service chiefs and the constitutional role of Congress,” said Family Research Council President Tony Perkins. “This move will only further the desire of voters to change Congress.”

In most cases, federal lawyers would be expected to challenge an adverse ruling, but this case comes with an unusual set of circumstances. President Obama has said he personally favors repeal of “don’t ask, don’t tell,” and allowing the deadline to pass without filing an appeal would enable him to deliver a top priority for his party’s gay supporters without the risks of a nasty congressional battle.

Mr. Obama may need more political cover as the Justice Department also revealed Tuesday that it will appeal a separate ruling from a federal court in Massachusetts that found the federal Defense of Marriage Act unconstitutional.

U.S. District Judge Joseph Tauro in Boston ruled in July for several gay couples who had argued that the Defense of Marriage Act interfered with the rights of states to define marriage. The administration is defending the 1996 law, even though Mr. Obama at one time said he opposed it as well.

Critics of “don’t ask, don’t tell” quickly issued statements Tuesday advising the Obama administration to accept the judge’s ruling.

“Legal experts have agreed that the Department of Justice is under no obligation to appeal this ruling,” said Aaron Belkin, executive director of the Palm Center, a think tank at the University of California at Santa Barbara that supports ending the ban. “President Obama can end ‘don’t ask, don’t tell’ now simply by allowing Judge Phillips’ decision to stand.”

Mr. Belkin said relying on Congress to act could mean “we may have to wait many more years for the Pentagon to stop firing qualified men and women under this discriminatory policy.”

Conservatives countered by calling on the administration to immediately appeal the ruling, arguing that President Obama had agreed to make no decision until the Pentagon issues its study of the potential impact of repeal on military readiness and morale in December.

“We are a nation at war,” said Rep. Howard P “Buck” McKeon of California, the ranking Republican on the House Armed Services Committee. “This decision could have a negative impact on military and family readiness since the Department of Defense is unprepared to address the issues that are bound to arise from such a hasty change.”

Even if the Justice Department does file an appeal, critics don’t anticipate a vigorous defense. They say the Obama administration has made only perfunctory arguments in favor of “don’t ask, don’t tell” in two recent legal challenges.

Last month, the Justice Department lost in a case filed in Washington by Margaret Witt, a former Air Force flight nurse discharged under “don’t ask, don’t tell.” Conservatives blame then-Solicitor General Elena Kagan, an outspoken critic of the policy and now a justice on the Supreme Court, for failing to mount a stronger defense.

The Justice Department chose not to appeal the ruling in the Witt case, said Tommy Sears, executive director of the Livonia, Mich.-based Center for Military Readiness, which opposes ending the policy.

“The law had been upheld as constitutional numerous times [until recently],” said Mr. Sears. “Given the lack of a vigorous defense, it’s not surprising this case came down the way it did. These two cases are the product of a dereliction of duty on the part of the Obama administration.”

An estimated 13,500 military members have been discharged under the policy since it was signed in 1993 by President Clinton. At the time, the “don’t ask, don’t tell” approach was viewed as a step forward for gay service members.

Rep. Eliot L. Engel, New York Democrat, praised the Tuesday ruling as a step forward for both gay rights and military preparedness, arguing that discharging qualified personnel undercuts U.S. security.

“It is disgraceful that in the modern era, citizens are unable to be open about who they are while serving their country,” said Mr. Engel. “Gay and lesbian service members should enjoy the same respect as other Americans in uniform.”

Judge Phillips, 53, was appointed to the bench by Mr. Clinton in 1999. She was assigned the “don’t ask, don’t tell” case in 2008 after the original judge in Los Angeles retired and has a reputation as a “by-the-book” jurist.

• Ben Conery, Eli Lake and Kara Rowland contributed to this report.



• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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