RIVERSIDE, Calif. | A federal judge said Monday that she is leaning toward denying a government request to delay her order halting the military from enforcing its ban on openly gay troops.
U.S. District Judge Virginia A. Phillips said she would review the arguments from Justice Department lawyers and issue a ruling by Tuesday.
“My tentative ruling is to deny the application for a stay,” Judge Phillips said at the start of the hearing.
Judge Phillips said the government has not proven that her order would harm troops or in any way impede efforts to implement new regulations for the military to deal with openly gay service members.
If she rejects the request, Justice Department officials say the Obama administration would appeal. Experts say they will likely find friendlier venues in the U.S. Court of Appeals for the 9th Circuit in San Francisco and, ultimately, the U.S. Supreme Court.
“The farther the decision gets from the presentation of evidence in the trial court, the more likely it is that courts will assume the military must have some critically important interest at stake,” said Diane Mazur, a law professor who opposes the policy.
The military has promised to abide by the injunction against the “don’t ask, don’t tell” policy as long as her order remained in place.
Government attorneys had asked Judge Phillips to suspend her order while they appealed, saying that forcing an abrupt change of policy could damage troop morale as they fought two wars.
The judge declared the policy unconstitutional on Sept. 9, saying it violated due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.
Judge Phillips said the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting and requiring the discharge of service members with critical skills and training.
At the time, she asked both sides to give her input about an injunction and, on Monday, called the government request “untimely.” She said the Justice Department had plenty of opportunity to modify her injunction before she ordered it on Oct. 12.
Judge Phillips also said the government did not present evidence at the trial to show how her order would cause irreparable harm to troops.
Government attorney Paul Freeborne said the Justice Department had no reason to present such evidence until her order came down.
He said her nationwide injunction was unrealistic, and will hurt military effectiveness because it does not allow enough time for the military to conduct its training and education to implement the new regulations.
“You’re requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal,” Mr. Freeborne told her.
A lawyer representing the Log Cabin Republicans, a gay rights group that filed the lawsuit challenging the ban in 2004, said the Justice Department has had six years to respond and did not.
Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves. President Obama has said he wants the law repealed in Congress.
Defense Secretary Robert M. Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military’s top uniformed officer, both say they support lifting the ban. But Mr. Gates and Adm. Mullen also have warned that they would prefer to move slowly.
Mr. Gates has ordered a sweeping study due Dec. 1 that includes a survey of troops and their families.
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