Judge tentatively upholds gays-in-military order

By Dan Whitcomb

RIVERSIDE, California (BestGrowthStock) – A federal judge tentatively refused Monday to let the Pentagon reinstate its ban on openly gay men and women in the U.S. military while the government appeals her decision declaring the policy unconstitutional.

The Obama administration has insisted it supports ending the policy, known as “don’t ask, don’t tell,” but urged the judge again to allow more time for a political remedy to the issue rather than a court-imposed one.

The administration has said it would otherwise seek a stay from the 9th U.S. Circuit Court of Appeals allowing the ban on gays in the military to remain in effect pending appeal.

However, U.S. District Judge Virginia Phillips said on Monday that she was inclined to stand by the injunction she issued last week barring further enforcement of the ban. She said the government was too late in requesting a stay of her order and lacked “substantive evidence” to support its case.

“My tentative ruling is to deny the application for a stay,” she said during a brief court hearing, adding that she would issue a formal decision by Tuesday morning.

The legal debate comes at a tough time for Obama and his Democratic allies in Congress, who risk diminishing support from the gay community, a key constituency, as they fight to hold off a possible Republican rout in the November 2 elections.

Republicans, many of whom fiercely oppose gays serving openly in the military, are seen as gaining from any hot-button social issues they can use to galvanize their conservative base at the polls.

Phillips ruled in September that the 17-year-old “don’t ask, don’t tell” law infringes on the constitutional free-speech and due-process rights of gay men and lesbians serving in the armed forces.


Over the administration’s objections, she put that opinion into effect on October 11 with a blanket injunction requiring the military to stop enforcing the ban and drop pending investigations and discharges stemming from it.

The Pentagon said Friday it was abiding by the court order but warned that gay service members who took advantage of the ruling to reveal their sexual orientation could still face expulsion later if the judge’s ruling were reversed.

President Barack Obama and Defense Secretary Robert Gates have said they support repeal of the policy but have urged that it be done by Congress and the military so that there is no disruption to military operations, morale or recruiting.

“The military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas,” Defense Undersecretary of Defense for Personnel and Readiness Clifford Stanley said in a declaration to the court.

But Phillips said evidence presented by the government “was insufficient to meet the burden” for a stay.

The U.S. Senate last month blocked legislation to repeal the policy, which has banned homosexual acts in the military while allowing gays to serve in the armed forces so long as they keep their sexual orientation a secret. Otherwise, they could be expelled.

“Don’t ask, don’t tell” was introduced in 1993 by President Bill Clinton and enacted into law, overturning previous regulations that excluded gay men and women outright based on a premise that homosexuality was incompatible with the military.

The lawsuit challenging the policy was brought by the Log Cabin Republicans, a gay rights group, six years ago.

In a separate case last month, a federal judge in Tacoma, Washington, ordered the reinstatement of a former U.S. Air Force Reserve flight nurse expelled from the military after revealing she is a lesbian.

(Editing by Steve Gorman and Eric Walsh)

Judge tentatively upholds gays-in-military order