Judge tentatively rejects 'don't ask, don't tell' stay request - Los Angeles Times

A federal judge in Riverside who declared the military's "don't ask, don't tell" policy banning gays unconstitutional issued a tentative ruling Monday rejecting the federal government's request to stay her decision while the case is appealed.

U.S. District Judge Virginia Phillips said the government failed to provide sufficient proof that her injunction halting the policy would cause "irreparable harm" to the military or that the government's appeal would be successful. Phillips planned to issue her final decision early Tuesday.

Paul Freeborne of the U.S. attorney's office argued that the injunction immediately halting enforcement of the policy, which bans gays and lesbians from serving openly in the military, jeopardized national security.

He urged Phillips, who issued the injunction last week, to set aside her decision while the government appealed the ruling and injunction to the U.S. 9th Circuit Court of Appeals.

In a sworn declaration submitted to the court, Clifford L. Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would undercut the Pentagon's survey of military commands around the world to determine how best to create a policy that allowed people who are openly homosexual to serve.

"The stakes are so high, and the potential harm so great, that caution is in order," he said.

But Phillips on Monday rejected that argument. The judge said her ruling ordered an end to all discharge and separation proceedings under "don't ask, don't tell," but did not prohibit the military from crafting a new policy or educating military personnel about serving side by side with openly gay service members.

Phillips also said that the government failed to produce any evidence during the two-week trial that showed allowing gays in the military would harm military readiness or troop cohesion.

"The arguments by the government are vague … and belied by the evidence produced at trial," Phillips said Monday. She also chastised the federal government lawyers for not filing their objections when she was considering the injunction.

In her initial Sept. 9 ruling, Phillips found that the ban on gays had a "direct and deleterious effect" on the armed services, including the dismissal of crucial military personnel such as translators. She noted that the Pentagon violated the policy when it saw fit, routinely delaying the discharge of service members suspected of violating the law until they completed their deployments in Iraq and Afghanistan.

During Monday's hearing, Freeborne also argued that the judge exceeded her authority by issuing an injunction worldwide, as opposed to limiting it to the plaintiffs in the case or within her Southern California district. That argument will be a primary aspect of the government's appeal.

The ruling has put President Obama in a tricky spot. He strongly opposes the "don't ask, don't tell" policy, which he once called a threat to national security, but says his administration has an obligation to defend laws passed by Congress.

Meanwhile, the military has suspended enforcement of the policy while Phillips' injunction is in place.

The challenge to the "don't ask, don't tell" policy was filed in 2004 by the Log Cabin Republicans, the largest gay GOP political organization. It was the first successful broad-based constitutional challenge to the policy since Congress enacted it in 1993.

Dan Woods, the lead attorney for the Log Cabin Republicans, argued during Monday's hearing that lifting the judge's injunction would "deprive very patriotic Americans of their constitutional rights" and urged the judge to keep it in place.

Former President Clinton adopted the "don't ask, don't tell" policy as a reform to the military's practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve. More than 13,000 service members have been discharged under the policy.

The House of Representatives voted to repeal the policy last spring, contingent on the outcome of a Pentagon study to determine if it can adapt to the change without harming military readiness. The study is expected to be completed by December. The proposed repeal was blocked on the Senate floor, although it may be reconsidered during a lame-duck session after the November election.

phil.willon@latimes.com

View the original article here

Justice Department says 'don't ask, don't tell' ruling will harm troops - Los Angeles Times

The Justice Department asked a federal judge Thursday to set aside her decision stopping the "don't ask, don't tell" policy for gays and lesbians in the military until it can appeal the ruling, saying the decision would "irreparably harm our military and the national security of the United States."

Government lawyers told U.S. District Judge Virginia A. Phillips of Riverside that if she did not lift her order by Monday, they would ask the U.S. 9th Circuit Court of Appeals to halt it. If the appeals court in San Francisco fails to act, the government probably will ask the Supreme Court to intervene to prevent an abrupt change to the military, which says it is not yet prepared to handle the transition.

The confrontation comes at a politically awkward moment for President Obama. He opposes the "don't ask, don't tell" policy, but now — just weeks before the midterm election — risks alienating his liberal base by seeking to halt the judge's order.

On Thursday at a town hall meeting in Washington, Obama pledged he would end the highly controversial 17-year-old policy for removing homosexuals from the armed forces.

"Anybody should be able to serve, and they should not have to lie about who they are in order to serve. This policy will end. It will end on my watch," Obama said.

But the president acknowledged that he is hamstrung by the fact that the policy is written into law and said "this is not a situation where I can, by the stroke of a pen, end this policy."

In the meantime, the Pentagon said that it would suspend enforcement of "don't ask, don't tell" while Phillips' injunction remains in place.

"The department will abide by the terms in the court's ruling, effective as of the time and date of the ruling," Col. Dave Lapan said Thursday.

Under the law, enacted in 1993 under President Clinton, commanders cannot ask about a service member's sexual orientation, but if a soldier volunteers the information, then he can be removed. About 13,000 have been removed so far.

Despite the ruling issued Tuesday that the law is an unconstitutional violation of due process and 1st Amendment rights, the president signaled that he preferred Congress to repeal the law. The House voted for repeal this year, as did the Senate Armed Services Committee. But the repeal was blocked by Republicans on the Senate floor. Now, some in the Senate hope the matter can be reexamined during the lame-duck session this fall.

Clifford L. Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would ruin the Pentagon's work surveying military commands around the world to determine how best to create a new policy that allows people who are openly homosexual to serve.

The judge's injunction, Stanley said in a sworn declaration submitted with the government's appeal, "will have adverse effects on both military readiness and the department's ability to effect a smooth and lasting transition to a policy that accommodates the presence of openly gay and lesbian service members."

"The stakes are so high, and the potential harm so great, that caution is in order," he said.

Stanley, a 2009 Obama appointee, said a working group of Pentagon officials was still struggling to figure out the best way to run the military without the "don't ask, don't tell" policy, but their recommendations are not expected until Dec. 1.

Then, he said, there would be command review and final decisions made on how best to run an efficient military operation while also safeguarding soldiers, sailors and Marines who are homosexuals.

He said military leaders would need time to learn the new policy and how it prohibits discrimination against gays and lesbians.

"Without this education and training," he said, "commanders in the field will not have the necessary guidance and will not be able to enforce the new regime in the consistent, even-handed manner that is essential to morale, discipline and good order.

"Equally importantly, service members must know what is expected of them."

Stanley also warned that "a poorly implemented transition will not only cause short-term disruption to military operations, but would also jeopardize the long-term success of the transition. Either outcome would irreparably harm our military and the national security of the United States."

He added that gays who took advantage of the ruling could face expulsion if the decision is later overturned and the military decided to move against them.

Christian Berle, deputy executive director of the Log Cabin Republicans, a conservative organization that initially brought the suit, said the group would "continue to advocate on behalf of American service members," adding that "if this stay is granted, justice will be delayed but it will not be denied."

In the government appeal, Justice Department lawyers said Phillips' order would require "a precipitous change in policy that threatens the public interest in a strong military." They also argued that her ruling was a setback to "the orderly repeal" of the policy that has been discussed in Congress.

They said that such a quick transition could "harm the government's critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the armed forces."

The government also filed a notice of appeal with the 9th Circuit Court, making clear that it intends to challenge the ruling if the judge does not set it aside for now.

Lapan said the Pentagon e-mailed military judges that the Tuesday ruling was to be followed immediately. One e-mail, made public by the Servicemembers Legal Defense Network, was sent by Lt. Gen. Richard C. Harding, the Air Force judge advocate general. He ordered military lawyers "to inform your commanders of this injunction and its terms."

Aaron Tax, the network's legal director, said the Pentagon's move "keeps the injunction in place and it gives it effect, and that's good news for lesbian, gay and bisexual service members." For now, he said, "no one will be discharged."

But if the judge or the 9th Circuit temporarily sets aside the ruling, homosexual service members will "remain at risk," Tax said.

richard.serrano@latimes.com

David S. Cloud, Christi Parsons and David G. Savage in the Washington bureau contributed to this report.

View the original article here

Judge orders military to stop enforcing 'don't ask, don't tell' - CNN

Judge: Stop enforcing 'don't ask'NEW: The Defense and Justice departments are studying the rulingA researcher says he expects the Obama administration to appeal the orderLog Cabin Republicans hail the federal judge's ruling but advise cautionThe judge had previously ruled that the policy violated service members' rights

(CNN) -- A federal judge on Tuesday ordered the U.S. military to stop enforcing the "don't ask, don't tell" policy, effectively ending the ban on openly gay troops.

U.S. District Judge Virginia Phillips' permanent worldwide injunction -- praised by gay rights organizations -- orders the military "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced" under the "don't ask, don't tell" policy.

The judge, a Clinton appointee based in the Central District of California, previously ruled that the policy regarding gays serving in the military violated service members' Fifth Amendment rights to due process and freedom of speech, but had delayed issuing the injunction.

The military was sued by Log Cabin Republicans, a gay rights group.

Justice Department spokeswoman Tracy Schmaler would say only that the department is "reviewing the ruling." The department has 60 days to appeal, but is not required to do so.

The Defense Department is reviewing the ruling to determine whether it has immediate impact and is consulting with the Justice Department, Pentagon spokeswoman Cynthia Smith said.

Air Force lawyers in a recent case argued the military -- not the courts -- is in the best position to evaluate and enforce the "don't ask, don't tell" policy.

President Barack Obama is pushing for a repeal of the controversial policy. A bill currently before Congress would overturn the measure after a Pentagon review is completed in December.

More than 12,500 people have been booted from the military since "don't ask, don't tell" went into effect. Along with barring known gay, lesbian and bisexual individuals from serving, the policy prevents the military from asking them about it.

Log Cabin Republicans praised the ruling but urged "caution by servicemembers considering coming out at this time, as the Obama administration still has the option to appeal."

The group said the ruling is a victory for strong national defense.

"No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination," it said in a statement following the ruling.

Servicemembers United, which describes itself as the nation's largest organization of gay and lesbian troops and veterans, also hailed the judge's ruling but urged gays who serve to be careful about coming out now.

"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," said executive director Alexander Nicholson.

Aaron Belkin, director of the Palm Center, a research institute of the University of California-Santa Barbara, said he expects the Obama adminsitration to appeal Tuesday's order.

"The case could be done next week if the administration decides not to appeal, or it could take five years if there is an appeal, or Congress could move faster than the Justice Department, which would render this case moot," said Belkin, whose institute researches sexual minorities in the military and advocates an end to the ban.

CNN's Carol Cratty and Jennifer Rizzo contributed to this report.

View the original article here