Metro Weekly


Nicholson.jpg[NOTE: This post was updated throughout Tuesday afternoon.]

U.S. District Court Judge Virginia A. Phillips has suspended enforcement of the military’s “Don’t Ask, Don’t Tell” policy as a result of her earlier opinion in Log Cabin Republicans v. United States that the policy is unconstitutional.

Ordering the government “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding” begun under DADT, Phillips’s permanent injunction is about as broad an order as she could have issued in the case.

The government has 60 days — until Monday, December 13, because the 60th day falls on a weekend — to appeal the trial court decision. In the interim, the government could seek a stay of Phillips’s decision from Phillips, the U.S. Court of Appeals for the Ninth Circuit or, ultimately, the U.S. Supreme Court.

Christian Berle, deputy executive director of LCR, praised the judgment in a statement.

“No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination,” he said. “The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible.”

Asked to respond to the ruling, Cynthia O. Smith, Defense Department spokeswoman, told Metro Weekly via email, “We have just learned of this ruling. We are now studying it and we will be in consultation with the Department of Justice.”

She added, “I would refer you to DOJ regarding any potential future litigation.”

The Justice Department is reviewing the ruling and had no immediate comment, yet White House spokesman Shin Inouye likewise directed requests for comment to DOJ.

“The Department of Justice is studying the court’s ruling,” Inouye wrote in an email to Metro Weekly. “Any specific questions about this pending litigation should be directed to the Department of Justice.”

Phillips had asked the plaintiffs to propose a judgment and the defendant — the United States — to explain any objections. The plaintiffs asked for a broad declaration, like the one issued today, that all enforcement of DADT should be halted. The Department of Justice argued in response that such an order would be “untenable.”

In a key portion of today’s judgment, however, Phillips writes that her order “permanently enjoins [the U.S. government] from enforcing or applying the ‘Don’t Ask, Don’t Tell’ Act and implementing regulations, against any person under their jurisdiction or command.”

She also ordered Defense Secretary Robert Gates “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under [DADT], on or prior to the date of this Judgment.”

The government also had asked the court to “defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches.” With today’s order, Phillips declined to do so. She also declined to issue a stay of the judgment so that the government could seek an appeal, as also was requested by the government. In the absence of a stay to be issued by the Ninth Circuit or the U.S. Supreme Court, DADT cannot be enforced from this point forward unless the government appeals her decision and a higher court reverses it.

Servicemembers Legal Defense Network Legal Director Aaron Tax noted in a statement, however, “This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. Servicemembers must proceed safely and should not come out at this time.”

Alexander Nicholson, executive director of Servicemembers United and a plaintiff in the case, said in a statement, “This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking.”

Human Rights Campaign president Joe Solmonese called for the administration not to appeal Phillips’s ruling.

“The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence,” he said. “The President has said this law harms our national security and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination.”

The news comes as court watchers and equality advocates await a decision by the Department of Justice on whether it will appeal U.S. District Court Judge Joseph Tauro’s decision striking down Section 3 of the Defense of Marriage Act in Massachusetts v. U.S. Department of Health and Human Services. The deadline for DOJ to file notice of its intention to appeal that case is today. [UPDATE: The DOJ filed its notice of appeal. Read the story here.]

[Photo: Alex Nicholson, who testified in the LCR case, in his Servicemembers United offices. (Photo by Todd Franson.)]

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