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Judge ends military's 'don't ask' ban on gays

By Jerry Markon and Ed O'Keefe
Washington Post Staff Writers
Wednesday, October 13, 2010; A1

A federal judge ordered an immediate end Tuesday to the Pentagon's enforcement of its ban on openly gay service members, rejecting the Obama administration's argument that an injunction to stop the "don't ask, don't tell" policy might harm military readiness.

The ruling by U.S. District Judge Virginia A. Phillips in California marks the first time that the controversial policy - which forbids the military to ask about a service member's sexual orientation but retains a ban on gays serving openly - has been halted.

Leaders of the group that brought the suit celebrated the injunction, the latest in a series of recent court rulings that expand the rights of gay Americans to marry and serve in uniform.

"This decision is also a victory for all who support a strong national defense," said Christian Berle, acting executive director of the Log Cabin Republicans. "No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."

Phillips issued a ruling last month declaring "don't ask, don't tell'' unconstitutional, saying it has a "direct and deleterious effect" on the armed services. She then issued Tuesday's injunction banning enforcement of the policy after considering an argument by the Justice Department that such an "abrupt change" would affect military operations in a time of war.

The Justice Department would not comment on whether the government will appeal the injunction, but a senior military official said a decision is expected within several days. The case puts the administration in an awkward position, because the Justice Department has defended "don't ask, don't tell" in court - drawing opposition from gay rights groups - even though President Obama supports a repeal of the policy.

"We have just learned of the ruling and are now studying it," said Pentagon spokesman Geoff Morrell, who is traveling in Hanoi with Defense Secretary Robert M. Gates. "We will be in consultation with the Department of Justice about how best to proceed."

It is unclear how the military would enforce Phillips's injunction or what its impact would be on the armed forces. The ruling not only halts future investigations and proceedings to discharge gay service members under "don't ask, don't tell," it stops all such efforts now underway.

A senior military official said "it's too soon to tell" the effect on readiness, while another said the Pentagon will probably wait to see whether the Justice Department seeks a stay of Tuesday's ruling before issuing "implementing instructions." The Pentagon is expected to complete a study by Dec. 1 on how to integrate openly gay men and lesbians into the ranks. Both officials spoke on the condition of anonymity because the ruling had just been handed down.

The uncertainty prompted one leading gay rights group to urge gays in uniform to keep their sexual orientation hidden for now. They "must proceed safely and should not come out at this time," because the injunction could be reversed by the U.S. Court of Appeals for the 9th Circuit, said the Servicemembers Legal Defense Network, which represents troops affected by "don't ask, don't tell.''

The injunction stems from a lawsuit brought by the Log Cabin Republicans, a 19,000-member conservative pro-gay-rights group that includes current and former military members.

The case is one of several legal and political fronts in the national debate over "don't ask, don't tell" and broader rights for gay Americans, including congressional efforts to repeal the law.

A Senate test vote on a repeal bill failed last month as Republicans united against it, and it remains unclear whether Democrats will bring up the measure for consideration again during a lame-duck session after the midterm elections next month. Repealing the ban could prove difficult if Republicans take control of Congress next year.

Two recent court rulings have also called into question state and federal bans on same-sex marriage. In July, a federal judge in Boston ruled the federal ban unconstitutional, saying that the 1996 Defense of Marriage Act interfered with a state's right to define marriage.

The Justice Department decided Tuesday to appeal that ruling, which legal observers took as a sign that the government probably will appeal the injunction stopping enforcement of "don't ask, don't tell.''

In a separate case, a federal judge in California ruled in August that the state's ban on same-sex marriage violates the constitutional right to equal protection. That case, in which challengers of the ban were represented by the unusual partnership of conservative legal stalwart Theodore B. Olson and liberal trial lawyer David Boies, is widely expected to end at the Supreme Court.

In the "don't ask, don't tell" case, tried before Phillips in July, the Justice Department defended the military's policy. But Phillips ruled that it violates due-process and First Amendment rights and that it is unnecessary for military readiness.

The judge then asked the Log Cabin Republicans to suggest language for an injunction, and the group urged her to ban enforcement throughout the military.

The Justice Department, in its response, said any injunction should be limited to members of the Log Cabin Republicans.

"A court should not compel the executive to implement an immediate cessation . . . without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe," government lawyers said.

Phillips rejected that argument on Tuesday, writing that "don't ask, don't tell" must be ended because it "infringes the fundamental rights of United States service members and prospective service members.''

markonj@washpost.com ed.okeefe@washingtonpost.com

Staff writers Craig Whitlock in Hanoi and Greg Jaffe at Fort Campbell, Ky., contributed to this report.

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