On Oct. 12, Judge Virginia A. Phillips, a Clinton appointee, of Federal District Court for the Central District of California, issued an injunction ceasing enforcement of the Donâ€™t Ask/ Donâ€™t Tell (DA/DT) law that banned openly gay service in the military and ordered the military â€śimmediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commencedâ€ť under the discriminatory policy. More than 13,500 service members have been discharged under DA/DT, including more than 800 specialists serving in â€ścritical operations,â€ť such as counterintelligence, medicine, and translation. According to a General Accounting Office report, 323 language specialists have been discharged, resulting in a critical shortage of qualified translators in intelligence gathering posts.
Phillipsâ€™ judgment states DA/DT â€śviolates the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment.â€ť This is significant in that it would apply to all United States service members anywhere in the world. In language similar to that in her Sept. 9 ruling in a suit by Log Cabin Republicans, a gay rights group, declaring the law unconstitutional, Judge Phillips wrote in this judgment that the 17-year-old policy â€śinfringes the fundamental rights of United States service members and prospective service members.â€ť Of course there were familiar opponents against the ruling, such as Tony Perkins, the president of the Family Research Council and a proponent of DA/DT, who accused Judge Phillips of being â€śan activist judgeâ€ť and of â€śplaying politics with our national defense.â€ť
President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court. But Phillipsâ€™ injunction leaves the Administration with a choice within 60 days: continue defending a law it opposes with an appeal, or do nothing, let the policy be overturned, and add an explosive issue to a midterm election with Republicans poised to make major gains. Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the militaryâ€™s top uniformed officer, have both said they support lifting the ban. But Gates and Mullen also have warned that they would prefer to move slowly. Gates has ordered a sweeping study due Dec. 1 that includes a survey of troops and their families. A bill currently before Congress would overturn the measure after a Pentagon review is completed in December.
Much depends on whether the Justice Department will appeal the decision to the 9th Circuit. Justice Department spokeswoman Tracy Schmaler would say only that the department is â€śreviewing the ruling.â€ť
Log Cabin Republicans praised the ruling but urged â€ścaution by service members considering coming out at this time, as the Obama administration still has the option to appeal.â€ť In a statement following the ruling, they said, â€śNo longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination.â€ť
â€śI think itâ€™s more likely Congress makes a decision first,â€ť said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network (SLDN), a Washington organization whose sole purpose is to repeal DA/DT. Sarvis also cautioned against LGBT service members coming out until everything is finalized. â€śWe have clients under investigation and facing discharge right now. Weâ€™ll be monitoring each case over the coming days,â€ť said SLDN Legal Director Aaron Tax. He said this order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. But the law still has a chance of being repealed in the lame duck session of Congress. He warned, â€śService members must proceed safely and should not come out at this time. Anyone in the armed forces with questions or concerns should call our hotline.â€ť
Servicemembers United, describing itself as the nationâ€™s largest organization of gay and lesbian troops and veterans, also welcomed the judgeâ€™s ruling but urged LGBT people who serve to be careful about coming out now. â€śThis order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,â€ť said Servicemembers United executive director Alexander Nicholson.
â€śThe administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence,â€ť said Human Rights Campaign President Joe Solmonese. â€śEach additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination.â€ť
â€śTodayâ€™s injunction against enforcement of the failed Donâ€™t Ask Donâ€™t Tell policy means that for the first time in seventeen years, patriotic men and women will not get fired by the military for who they are, and forces deployed to war zones overseas will not be deprived of capable, battle tested soldiers who refuse to lie,â€ť said Rick Jacobs, founder and director of Courage Campaign. â€śThat said, this injunction is but a temporary fix, and it is our hope that the Justice Department will not appeal this decision, and the Senate will finally abide the wishes of three quarters of the American people by eliminating this policy once and for all.â€ť He thanked the Log Cabin Republicans and â€śthe many courageous soldiers who have shared their stories for making todayâ€™s outcome possible.â€ť
â€śTodayâ€™s ruling is a long-awaited triumph for the courageous gay, lesbian, and bisexual soldiers who can finally serve in the military openly and honestly, without fear of reprisal. These soldiers who sacrifice for our nation every day will at long last be treated with the dignity and respect they deserve,â€ť said Equality California Executive Director Geoff Kors. â€śCongratulations to the Log Cabin Republicans for this historic victory, which could not have happened without their dedication.â€ť He added, â€śWe implore the Obama Administration and the Department of Justice not to appeal this ruling and instead to take a decisive stand for equality. This is President Obamaâ€™s chance to be the fierce advocate he promised to be.â€ť
Jacobs concluded, â€śUltimately, there are no second-class soldiers and there are no second-class Americans. Ensuring our laws match these values is not just a matter of national security or right and wrong. For the young people who struggle daily with who they are in the face of institutionalized homophobia, it sends a message that can literally be the difference between life and death.â€ť