- The Washington Times - Wednesday, October 13, 2010

The Obama administration distanced itself Wednesday from a federal judge’s injunction banning enforcement of the “don’t ask, don’t tell” policy on gays in the military, with officials saying that the policy should be properly addressed by Congress and not the courts.

Defense Secretary Robert M. Gates told reporters aboard a military aircraft flying to Brussels that Congress should decide the matter after the Defense Department finishes its review of the potential impact of a repeal, which is expected Dec. 1.

“This is a very complex business. It has enormous consequences for our troops,” Mr. Gates said. “As I have said from the very beginning, there should be legislation, and that legislation should be informed by the review we have under way.”

Meanwhile, White House spokesman Robert Gibbs reiterated that President Obama wants to see the policy abolished, saying that “time is running out on the policy of ‘don’t ask don’t tell,’” but agreed that the legislative branch should take the lead.

“The best way to end it is for the Senate to follow the lead of the House of Representatives so that that end can be implemented in a fashion that is consistent with our obligations in fighting two wars,” Mr. Gibbs told reporters in an off-camera briefing.

“Absent that action, the president has again set up a process to end this policy,” he said. “And I think the bottom line is that recent court rulings have demonstrated to Congress that it’s time to act and end this policy.”

A federal judge in Riverside, Calif., issued an injunction Tuesday prohibiting the U.S. military from enforcing “don’t ask, don’t tell,” which allows gays and lesbians to serve as long as they keep quiet about their sexuality.

The Justice Department has 60 days in which to decide whether to challenge the ruling, but as of Wednesday no announcement had been made.

The White House has come under intense pressure from gay rights organizations to allow the injunction to stand. Eighteen Democratic senators sent a letter to Attorney General Eric H. Holder Jr. on Wednesday asking him to “refrain from appealing this ruling.”

“There is no legal or military justification and not one shred of credible evidence that supports continuing the discriminatory DADT law, and considering the guidance of the commander-in-chief and the nation’s top two defense officials, we urge you to refrain from seeking an appeal,” said the letter.

At the same time, the Democratic lawmakers indicated that permitting the injunction to stand would not replace legislative action. They said they were “confident” the Senate would vote to permanently lift the ban on gays in the military this year, describing the court ruling as “a step in the right direction.”

The injunction comes with a repeal effort already under way in Congress. The House voted to repeal the policy earlier this year, but an attempt to pass a repeal in the Senate through an amendment to the defense-authorization bill was filibustered.

Whether to appeal the injunction has significant political ramifications. Filing a challenge before Nov. 2 would undoubtedly infuriate the Democratic Party’s liberal base, which could then retaliate by failing to show up for the midterm elections.

Apart from politics, the Justice Department’s decision has long-term ramifications for the balance of power between the three branches of government on military issues, said Tommy Sears, executive director of the Livonia, Mich.-based Center for Military Readiness, which opposes ending the ban on open gays in the military.

The White House “conspicuously did not endorse this ruling,” Mr. Sears said. “This ruling is about more than gays in the military. This ruling is about the traditional deference of the judicial branch to the two other branches of government in the area of military affairs.”

Allowing the injunction to stand could set a precedent that encourages judicial activism in other decisions involving the military, he said.

“If the U.S. solicitor general does not appeal Judge [Virginia] Phillips’ order … the Obama administration will have abandoned fundamental constitutional principles allocating power and responsibility for military affairs to the legislative and executive branches, just to deliver on the president’s political promises to [lesbian, gay, bisexual and transgender] activist groups,” said Elaine Donnelly, president of the Center for Military Readiness.

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