RIVERSIDE, Calif.—U.S. District Judge Virginia Phillips on Monday issued a tentative decision rejecting the Obama Justice Department’s request for a stay on her recent “Don’t Ask, Don’t Tell” ruling, which found the anti-gay ban unconstitutional and ordered an immediate halt to its enforcement in the military.
Phillips said the federal government failed in its appeal to prove that the injunction abolishing the armed services’ ban on openly gay service members would disrupt unit cohesion or military operations, or that the a continuing of the Justice Department’s legal challenge could prove fruitful.
Some representatives of the federal government argued in court that the injunction resulting from Phillips’ order could threaten national security in a time of war, and that the anti-gay policy should not be repealed until the Pentagon’s ongoing research into the effects of the law—and its possible repeal—are analyzed and considered to develop a future, altered policy.
But Phillips dismissed the government’s argument, asserting that although her ruling effectively halted DADT unless future appeals are successful, it does not bar the Pentagon from continuing its study of DADT and educating troops on how to adapt to and serve in a military with openly gay troops.
“My tentative ruling is to deny the application for a stay,” Phllips said in a hearing Monday. “The arguments by the government are vague … and belied by the evidence produced at trial.”
Paul Freeborne of the U.S. attorney’s office will build the federal government’s appeal in part on the premise that Phillips exceeded her authority by implementing the injunction worldwide, as opposed to limiting it to plaintiffs in the case or service members within her Southern California jurisdiction. Freeborne claims that “precipitous implementation” of the injunction could have a detrimental effect on military readiness.
Dan Woods, lead attorney for the Log Cabin Republicans, who were lead plaintiffs in the case, counters Freeborne’s claims by pointing out that the government had more than sufficient time to prepare for the possible repeal of DADT: The case dates back to 2004.
“During those six years, the government has deprived brave, patriotic Americans of their constitutional rights,” Woods said. “The government’s own ‘precipitous implementation’ is a problem of their own making. … [It] now wants to continue to deprive Americans of their constitutional rights. … The court cannot and should not do that.”
The Pentagon has ordered the armed services to halt the enforcement of DADT per Phillips’ injunction, but LGBT leaders have warned members of the military to remain tightlipped about their sexual orientation pending possible further challenges by the government, which could presumably reach the U.S. Supreme Court.
Phillips is expected to issue her final decision on the military’s request stay Tuesday.