No delay for 'don't ask, don't tell' ruling, so Pentagon takes gays - for now

A federal judge in California refused on Tuesday to postpone a worldwide injunction issued last week blocking enforcement of the Defense Department’s "don’t ask, don’t tell" policy banning gays from serving openly in the military.

US District Judge Virginia Phillips said the government had failed to prove the injunction would disrupt military operations or undercut readiness.

Instead, she said the don’t ask, don’t tell policy itself undercuts military efficiency. The judge said it also irreparably injures service members by violating their fundamental rights.

The action sets the stage for an expanding national battle over gay rights in the federal courts on issues ranging from receipt of federal benefits, to gay marriage, to service in the armed forces.

“[The government has] not shown … a likelihood [it] will suffer irreparable harm,” Judge Phillips wrote in a six-page decision rejecting the requested stay. “The injunction requires [the government] to cease investigating and discharging service members pursuant to the Act. It does not affect [the government’s] ability to revise [its] policies and regulations nor to develop training and education programs.”

Government lawyers had asked Judge Phillips to stay her ruling invalidating the don’t ask, don’t tell policy to allow enough time to appeal the case to the Ninth US Circuit Court of Appeals.

With the judge’s refusal, the government is expected to ask the Ninth Circuit to issue its own stay. Failing that, the stay issue could be presented to the US Supreme Court.

In the meantime, the Defense Department has agreed to suspend its enforcement of the policy. The Pentagon's undersecretary for personnel and readiness, Clifford Stanley, said in a memo that openly gay recruits are now free begin the process of joining the military.

He did caution, however, that gay recruits should be told what could happen later because "a certain amount of uncertainty now exists about the future of the 'don't ask, don't tell' law."

It is unclear what might happen if the judge’s ruling is overturned on appeal and the don’t ask, don’t tell policy is reinstated.

Judge dismisses Pentagon claims

Government lawyers had warned Phillips that the injunction would cause irreparable harm to the country, disrupting ongoing military operations and undermining military readiness, combat effectiveness, and morale.

Lawyers challenging don’t ask, don’t tell, responded that ending the policy would actually improve morale and increase military readiness, cohesion, and combat effectiveness.

“The injunction does not require the military to do anything affirmatively,” wrote Dan Woods in a brief on behalf of Log Cabin Republicans, a gay-rights group that sued to overturn the policy.

“It does not order the military to redesign its barracks, to retool its pay scales, [or] to re-ordain its chaplains,” Mr. Woods said. “The court’s injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability.”

At the White House earlier Tuesday, spokesman Robert Gibbs told reporters that the don’t ask, don’t tell policy would end during the Obama administration regardless of the California court case.

“The president believes that it is unjust, discriminatory, and that it harms our national security,” Mr. Gibbs said. But he added that the administration wants to establish a process for an orderly transition.

The case, Log Cabin Republicans v. United States of America, puts the Obama administration in a difficult position of having to defend a law that it is simultaneously trying to repeal.

Obama in a tough spot

The don’t ask, don’t tell policy is rooted in a 1993 statute passed by Congress. The administration is obligated to defend the nation’s laws from constitutional challenges, but it also has the authority to seek to amend or repeal those same laws.

Both the president and Defense Secretary Robert Gates have expressed their view that the don’t ask, don’t tell policy should be repealed. But they say the change should take place gradually.

A defense department review is underway with a final report and recommendations due Dec. 1. An effort in Congress to repeal the measure passed the House of Representatives, but bogged down recently in the Senate.

Gibbs said the administration will seek to revive Senate consideration of the measure later this year. Even that would not lead to immediate repeal.

The proposed legislation provides that the policy will remain in effect until new policies and regulations have been drawn up at the Defense Department, and administration officials have certified that the new policies and regulations will not hurt military effectiveness or readiness.

The Ninth Circuit has already docketed the government’s full appeal of Phillips’s ruling and injunction. The opening brief is due in late January, with the deadline for the response in late February.

The don’t ask, don’t tell policy was passed by Congress 17 years ago during the presidency of Bill Clinton. The law permits gays and lesbians to serve in the military provided they keep their sexual orientation private. Under the statute, any public disclosure may lead to dismissal.

Roughly 13,500 gay or lesbian service members have been discharged under the policy.