Activist Judge Overturns Openly Gay Military Ban

A federal judge ordered the military Tuesday to immediately stop enforcing its ban on openly gay troops, bringing the 17-year "don't ask, don't tell" policy closer than it has ever been to being overturned.

Justice Department attorneys have 60 days to appeal the injunction but did not say what their next step would be.

President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court.

But U.S. District Judge Virginia Phillips' injunction leaves the administration with a choice: Continue defending a law it opposes with an appeal, or do nothing, let the policy be overturned, and add an explosive issue to a midterm election with Republicans poised to make major gains.

Department of Justice and Pentagon officials were reviewing the judge's decision and said they had no immediate comment.

"The whole thing has become a giant game of hot potato," said Diane H. Mazur, a legal expert at the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal. "There isn't anyone who wants to be responsible, it seems, for actually ending this policy.

"The potato has been passed around so many times that I think the grown-up in the room is going to be the federal courts."

A federal judge in Tacoma, Wash., ruled in a different case last month that a decorated flight nurse discharged from the Air Force for being openly gay should be given her job back.

Phillips, based in Riverside, Calif., issued a landmark ruling on Sept. 9, declaring the policy unconstitutional and asked both sides to give her input about an injunction. The judge said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

Gay rights groups hailed Phillips' latest move, crediting her with what the administration and Washington have not been able to do.

"For a single federal judge to tell the government to stop enforcing this policy worldwide, this afternoon, with no time to think about it or plan for it, is almost unprecedented," said Richard Socarides, a former Clinton White House adviser on gay rights. It is likely to be remembered as one of the more glaring examples of a judge making law from the bench, rather than enforcing it.

Gay rights advocates, however, tempered their celebrations, warning service members to avoid revealing their sexuality for fear that the injunction could be tossed out during an appeal and they would be left open to being discharged.

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.

The Pentagon did not immediately comment, and a Justice Department spokeswoman said the government was reviewing the decision. Meanwhile, a group of 19 Democrat senators signed a letter sent to U.S. Attorney General Eric Holder urging him to let the injunction stand.

A "don't ask, don't tell" supporter said Phillips overstepped her bounds.

"The judge ignored the evidence to impose her ill-informed and biased opinion on our military, endangering morale, health and security of our military at a time of war," said Wendy Wright, president of Concerned Women for America, a public policy group.

Wright said Phillips should have let Congress continue to investigate the impact of the repeal.

Phillips' order goes into effect immediately, said Dan Woods, the attorney who represented the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.

The group says more than 13,500 service members have been fired under the Clinton administration-era policy, which prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay.

Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, including in their own homes off base, are subject to discharge.

Phillips' ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations.

Government attorneys had warned Phillips that such an abrupt change from an injunction might harm military operations during wartime. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.

The Justice Department attorneys also said Congress should decide the issue - not the court.

Phillips disagreed, saying the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting when the country is at war and requiring the discharge of service members with critical skills and training.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.

Obama opposed "don't ask, don't tell" in the 2008 presidential campaign and pledged to work for its repeal.

Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military's top uniformed officer, have both said they support lifting the ban. But Gates and Mullen also have warned that they would prefer to move slowly.

Gates has ordered a sweeping study due Dec. 1 that includes a survey of troops and their families. Activists want the policy reversed before the results of those surveys are publicly disclosed.

The president agreed to the Pentagon study but also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer. Most observers concede that a majority of the military supports the ban and does not want to be housed together with known homosexuals.

That legislation passed the House but was blocked in the Senate by Republicans.

Gates has said the purpose of his study isn't to determine whether to change the law - something he says is probably inevitable but up for Congress to decide. Instead, the study is intended to determine how to lift the ban without causing serious disruption during wartime.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult - if not impossible - next year.

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