Judge Inclined To Go Ahead With Lifting Ban On Gays In Military

A federal judge in Riverside indicated today she would stand by her earlier decision to bar the U.S. military from continuing the “Don’t Ask, Don’t Tell” policy against open gay service, but held off on making her ruling final.

After hearing arguments from attorneys for the Log Cabin Republicans — the group that challenged the policy on constitutional grounds — and the Justice Department, U.S. District Judge Virginia Phillips said she was tentatively in favor of letting the permanent injunction remain in force.

However, the judge said she would make no formal ruling until the end of the day Monday or Tuesday morning.

Last month, Phillips declared the policy unconstitutional because it violated homosexual service members’ rights to freedom of speech and due process of law.

The Obama administration is asking the judge to stay her injunction because it may “adversely impact the military’s effectiveness” by throwing off the Pentagon’s current rules and regulations without an appropriate transition period.

Phillips’ ruling against Don’t Ask, Don’t Tell is also being appealed to the Ninth Circuit Court of Appeals, and the government requested that the judge at least grant a temporary stay until the appellate court makes a decision on whether to hear the case.

“You’re requiring the Department of Defense to implement a massive policy change that may be reversed on appeal,” said Assistant U.S. Attorney Paul G. Freeborne. “We are very likely to succeed on the merits of our case, and in the meantime, this could adversely impact military effectiveness.”

He cited Supreme Court precedents that support judicial relief for the government when “the balance of hardships” tilts in its favor.

Dan Woods, an attorney for White & Case, the law firm representing the Log Cabin Republicans, equated lifting the injunction with “depriving brave American patriots of their constitutional rights.”

Woods suggested the government was trying to change the outcome of the trial it lost defending Don’t Ask, Don’t Tell by seeking a stay.

Phillips said even if the injunction resulted in “irreparable harm” to the government, there was no right to an injunction.

“The government chose not to put on a case regarding the negative effects on unit cohesion and morale,” the judge said. “But it didn’t, and it lost at trial.”

Phillips said the injunction would not impede the Pentagon from formulating new policies or training procedures to adapt troops to a world without Don’t Ask, Don’t Tell.

President Barack Obama said last week that the law must end, but it requires more to dismantle an act of Congress than the simple “stroke of a pen.”

“I do have an obligation to make sure that I’m following some of the rules,” he said.

Secretary of Defense Robert Gates convened a “working group” earlier this year to determine the repercussions of repealing Don’t Ask, Don’t Tell. The group’s report is due back Dec. 1.

The Flag & General Officers for the Military — a group of 1,200 retired generals and admirals — has said revoking Don’t Ask, Don’t Tell could “break” the armed forces, undermining morale and driving away potential recruits.

Elaine Donnelly, president of the nonprofit Center for Military Readiness, has called Phillips’ ruling on the policy “outlandish.”

“Somehow the activist judge missed finding number two in the actual law (Title 10, Section 654 of the U.S. Code): `There is no constitutional right to serve in the United States armed forces,”’ Donnelly said earlier.