In ruling Don’t Ask, Don’t Tell unconstitutional, U.S. District Judge Virginia Philips said she will issue an injunction to stop the military from enforcing the policy.
In her ruling, in which she said DADT violates the Fifth and First Amendment rights of gay and lesbian service members, Philips agreed to issue an injunction against the policy. She gave the plaintiffs, the Log Cabin Republicans, until Sept. 16 to submit a proposed injunction and the defendants, in this case the U.S. government, another seven days to object.A spokesman for the Justice Department tells TPM the administration has not decided whether to appeal the ruling, and had no comment on the potential injunction.
Appeals to the ruling and objections to the injunction, which are likely, mean that DADT is probably not going anywhere until Congress repeals it.
Legislative repeal has been an ongoing debate this year, as the military conducts a review of how best to institute repeal on the ground. Defense Secretary Robert Gates has said it is not a question of if, but when — but he has also warned Congress not to try to repeal the law before the review, due at the beginning of December, is complete.
Repeal is already in the House version of the defense authorization bill. But it still faces significant hurdles. First, it must make it through conference committee. Second, if the bill also includes funding for a fighter engine the military doesn’t want — something it very well could include — President Obama has promised to veto it.
Still, the ruling is the third victory for gay rights proponents in three months: In July, a judge ruled the federal Defense of Marriage Act unconstitutional and in August, another judge ruled California’s Proposition 8 unconstitutional. The DOJ has until Oct. 11 to decide whether to appeal the DOMA ruling. As for Prop 8, the defendants — the state of California — have decided not to appeal, but the appeals court may still grant anti-gay groups the right to appeal themselves.
In her ruling, Philips said the Obama administration did little to defend the policy.
“In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the ‘don’t ask, don’t tell’ act was necessary to significantly further the government’s important interests in military readiness and unit cohesion,” she wrote. “Defendants failed to meet that burden.”
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