Judge orders halt to 'don't ask, don't tell'

By Richard A. Serrano, Tribune Washington Bureau

Oct. 13, 2010 12 AM PT

Reporting from Washington — A federal judge in California issued a permanent ban Tuesday on the Pentagon’s “don’t ask, don’t tell” policy on gays and lesbians in the military, ordering the Defense Department to immediately halt any efforts to remove personnel because of their sexual orientation.

The government has 60 days to appeal the ruling, which gives the administration until after the midterm election next month to make a decision. But it also presents a problem for President Obama as he tries to rally his Democratic base.

As a presidential candidate, Obama said he would work to do away with the policy. But should the Justice Department appeal the ruling, it could anger many of the president’s liberal supporters, something Obama and congressional Democrats can ill afford.

In a separate case that posed a similar problem, the administration decided Tuesday to appeal two court rulings in Massachusetts that found unconstitutional the federal definition of marriage as between a man and a woman.

The administration filed a notice of appeal to protect the 1996 Defense of Marriage Act, or DOMA, which bars gay marriages, although Obama opposes the law. A Justice Department spokeswoman told the Associated Press that the administration was obligated to defend federal laws when challenged in court.

“As a policy matter, the president has made clear that he believes DOMA is discriminatory and should be repealed,” said Justice Department spokeswoman Tracy Schmaler. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”

Tony Perkins, president of the conservative Family Research Council, called on the administration to immediately appeal the “don’t ask, don’t tell” decision. Otherwise, he said, it would “only further the desire of voters to change Congress” out of anger at “activist judges and arrogant politicians.”

Justice Department officials said no decision had been made, though the government has known for a month that the ruling might be coming. U.S. District Judge Virginia A. Phillips in Riverside said on Sept. 9 that she considered the policy unconstitutional.

At the Pentagon, spokeswoman Cynthia O. Smith said the ruling was under review. Other Pentagon officials said a task force created to examine the issue had not completed its study and that town hall meetings with military families were continuing, as was an online opinion survey. If there is no appeal, they said, the ruling would short-circuit that effort.

The “don’t ask, don’t tell” policy was enacted by Congress in 1993 in an effort to reform the military’s practice of searching out and discharging gay personnel.

Under the policy, gays and lesbians could serve in the military as long as they kept their sexual orientation secret. More than 13,000 service members have been discharged under “don’t ask, don’t tell.”

In her three-page order Tuesday, Phillips declared that the policy “infringes on the fundamental rights of United States service members and prospective service members.”

She also said it violated due process and freedom of speech, and did not allow targeted service members “to petition the government for redress of grievances” to fight for their jobs if they were outed as homosexuals.

Phillips ordered the military to immediately stop “enforcing or applying” the policy and implementing the regulations “against any person under their jurisdiction or command.”

She further ordered them “immediately to suspend and discontinue any investigation, or discharge, separation or other proceedings” that were underway.

If the government does not appeal, the question will be whether a district court judge can unilaterally invalidate a longstanding policy of the United States military.

“A federal judge always has the power to declare a law unconstitutional,” said Erwin Chemerinsky, dean of the UC Irvine School of Law.

“The interesting question concerns a nationwide injunction. On the one hand, I think she is on strong ground in doing so. On the other hand, one district judge doesn’t have the authority to bind judges in other districts or circuits. They can decide for themselves. The key question is whether the Obama administration will appeal.”

There also is an effort underway in Congress to repeal the law. The House this year voted to repeal the act, as did the Senate Armed Services Committee. But Republicans blocked action on the Senate floor.

Drew Hammill, a spokesman for House Speaker Nancy Pelosi (D- San Francisco), said the speaker welcomed the judge’s order and “continues to believe, until the Senate can act on the repeal of this policy and send it to the president’s desk, the administration should place a moratorium on all dismissals under this policy.”

The judge was ruling in a case brought by the Log Cabin Republicans, the nation’s largest gay GOP political organization. In the trial in July, Justice Department lawyer Paul G. Freeborne argued that Congress and not the courts should decide the fate of “don’t ask, don’t tell.”

Many gay and lesbian groups praised the order, but Aaron Tax, legal director for the Servicemembers Legal Defense Network, predicted that the government would appeal.

With that in mind, he said, homosexual “service members must proceed safely and should not come out at this time.”

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David Cloud in the Washington bureau contributed to this report.