HRC's Statement: See it here
HRC Statement on Injunction Barring DADT Enforcement
Solmonese: “The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence”
Washington – Today, federal district judge Virginia Phillips, following on her September decision striking down the “Don’t Ask, Don’t Tell” law in a case brought by the Log Cabin Republicans, ordered the Department of Defense to immediately cease enforcement of the statute barring gays and lesbians from serving openly in the Armed Forces. Human Rights Campaign President Joe Solmonese issued the following statement:
“The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence. The President has said this law harms our national security and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination.”
The Human Rights Campaign is America's largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against GLBT citizens and realize a nation that achieves fundamental fairness and equality for all.
From the New York Times and AP: The article is here
SAN DIEGO (AP) — A federal judge issued a worldwide injunction Tuesday immediately stopping enforcement of the military's "don't ask, don't tell" policy, suspending the 17-year-old ban on openly gay U.S. troops.
U.S. District Judge Virginia Phillips' landmark ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations under the policy.
U.S. Department of Justice attorneys have 60 days to appeal. Pentagon and Department of Justice officials said they are reviewing the case and had no immediate comment.
The injunction goes into effect immediately, said Dan Woods, the attorney who represented the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.
"Don't ask, don't tell, as of today at least, is done, and the government is going to have to do something now to resurrect it," Woods said. "This is an extremely significant, historic decision. Once and for all, this failed policy is stopped. Fortunately now we hope all Americans who wish to serve their country can."
Legal experts say the Obama administration is under no legal obligation to appeal and could let Phillips' ruling stand.
Phillips' decision was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.
"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans.
He was the sole named veteran plaintiff in the case along with the Log Cabin Republicans, a gay rights organization that filed the lawsuit in 2004 to stop the ban's enforcement.
Gay rights groups warned gay troops not to make their sexual orientation public just yet. Aaron Tax, the legal director for the Servicemembers Legal Defense Network, said he expects the Justice Department to appeal. If that happens, the case would be brought to the U.S. Court of Appeals for the 9th Circuit, where the decision could be reversed.
"Service members must proceed safely and should not come out at this time," Tax said in a statement.
Supporters of the ban said Phillips overstepped her bounds.
"The judge ignored the evidence to impose her ill-informed and biased opinion on our military, endangering morale, health and security of our military at a time of war," said Wendy Wright, president of Concerned Women for America, a women's group on public policy. "She did not do what Congress did when it passed the law and investigate the far-reaching effects of how this will detrimentally impact the men and women who risk their lives to defend us."
The case put the Obama administration in the awkward position of defending a policy it wants Congress to repeal.
Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military's top uniformed officer, have both said they support lifting the ban. But Gates and Mullen also have said they would prefer to move slowly.
Gates has ordered a sweeping study, due Dec. 1, that includes a survey of troops and their families.
President Obama agreed to the Pentagon study but also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer.
That legislation passed the House but was blocked in the Senate by Republicans.
Gates has said the purpose of his study isn't to determine whether to change the law — something he says is probably inevitable but up for Congress to decide. Instead, the study is intended to determine how to lift the ban without causing serious disruption at a time when troops are fighting two wars.
"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here,' " said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.
Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue — not her court.
Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.
"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.
She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.
Phillips declared the law unconstitutional after listening to the testimony of discharged service members during a two-week nonjury trial this summer in federal court in Riverside.
She said the Log Cabin Republicans "established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.
Phillips is the second federal judge in recent weeks to throw the law into disarray.
A federal judge last month in Tacoma, Wash., ruled that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible. Barring an appeal, Maj. Margaret Witt who was suspended in 2004, will now be able to serve despite being openly gay.
Gay rights advocates have worried they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill last month because of a "don't ask, don't tell" repeal provision.
If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult — if not impossible — next year.
The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.
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Associated Press Writer Anne Flaherty contributed to this report from Washington, D.C.
BREAKING: DADT IS SUSPENDED
Ordering the government "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding" begun under DADT, Phillips's permanent injunction is about as broad an order as she could have issued in the case.
The government has 60 days -- until Monday, December 13, because the 60th day falls on a weekend -- to appeal the trial court decision. In the interim, the government could seek a stay of Phillips's decision from Phillips, the U.S. Court of Appeals for the Ninth Circuit or, ultimately, the U.S. Supreme Court.
Asked to respond to the ruling, Cynthia O. Smith, Defense Department spokeswoman, told Metro Weekly via email, "We have just learned of this ruling. We are now studying it and we will be in consultation with the Department of Justice."
She added, "I would refer you to DOJ regarding any potential future litigation."
The Justice Department had no immediate comment.
Phillips had asked the plaintiffs to propose a judgment and the defendant -- the United States -- to explain any objections. The plaintiffs asked for a broad declaration, like the one issued today, that all enforcement of DADT should be halted. The Department of Justice argued in response that such an order would be "untenable."
The government also asked the court to "defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches." With today's order, Phillips declined to do so.
In key portions of today's judgment, which is effective immediately, Phillips writes that her order:
PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;
ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.
In the absence of a stay to be issued by Phillips, the Ninth Circuit or the U.S. Supreme Court, DADT cannot be enforced from this point forward.
Alexander Nicholson, executive director of Servicemembers United and a plaintiff in the case, said in a statement, "This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking."
Human Rights Campaign president Joe Solmonese called for the administration not to appeal Phillips's ruling.
"The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence," he said. "The President has said this law harms our national security and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination."
The news comes as court watchers and equality advocates await a decision by the Department of Justice on whether it will appeal U.S. District Court Judge Joseph Tauro's decision striking down Section 3 of the Defense of Marriage Act in Massachusetts v. U.S. Department of Health and Human Services. The deadline for DOJ to file notice of its intention to appeal that case is today. [UPDATE: The DOJ filed its notice of appeal. Read the story here.]
[Photo: Alex Nicholson, who testified in the LCR case, in his Servicemembers United offices. (Photo by Todd Franson.)]
From the Washington Post: The article is here
'Don't ask, don't tell' enforcement struck down by judge
Updated 5:36 p.m. ET
A California federal judge has issued an injunction stopping the military from enforcing its "don't ask, don't tell" policy, which bans gays and lesbians from serving openly in uniform.
U.S. District Judge Virginia A. Phillips ruled Tuesday that the policy "infringes the fundamental rights" of military service members and prospective service members and violates their rights to due process and freedom of speech.
Her ruling bars the Pentagon from enforcing or applying the policy and orders the military to immediately suspend and discontinue any investigations, discharges or other proceedings related to potential violations of the law.
To overturn the injunction, government lawyers would have to appeal to the 9th Circuit Court of Appeals and ask that the current policy be allowed to continue while the appellate judges consider the case.
The Pentagon plans to review the case and consult with the Justice Department, according to senior military officials. The Justice Department had no immediate comment, but the Obama administration is expected to appeal the decision.
The case was brought by the Log Cabin Republicans, a pro-gay rights group that includes current and former military members. The group argued during a two-week trial in July that the policy was unconstitutional and should be struck down.
Phillips agreed and last month granted a request for an injunction to stop the military from discharging gay service members while also allowing the government time to appeal the ruling.
The Justice Department argued the injunction should apply only to Log Cabin members, but Phillips ruled otherwise Tuesday.
The injunction "was the only reasonable solution," said Christian Berle, acting Executive director of Log Cabin Republicans. "These soldiers, sailors, airmen and marines sacrifice so much in defense of our nation and our Constitution."
"This decision is also a victory for all who support a strong national defense," Berle said. "No longer will our military be compelled to discharge service members with valuable skills and experience because of an archaic policy mandating irrational discrimination."
The Human Rights Campaign, a gay rights organization closely aligned with the Obama White House, said it would be a mistake for the Justice Department to appeal Phillips's decision.
The Servicemembers Legal Defense Network, which represents troops affected by the policy, said gays and lesbians serving in uniform "must proceed safely and should not come out at this time" since Tuesday's injunction could be reversed by the 9th Circuit. The group plans to closely monitor the status of several cases involving clients under investigation or facing discharges, it said.
The ruling comes as Congressional efforts to repeal the ban remain in doubt. A Senate test vote on a bill repealing the policy failed last month. It remains unclear whether Democrats will include the ban as part of an omnibus annual defense policy measure set for consideration during a lame-duck session after the midterm elections. But if it fails during the lame-duck, repeal could be difficult if Democrats lose control of the Senate to Republicans.
The injunction should not affect the Defense Department's ongoing study of how the military would repeal the ban, senior military officials said.
"Obviously, we'll watch with great interest to see how this develops," said one senior military official familiar with the study who was not authorized to speak publicly.
A final report is due to President Obama and senior military leaders by Dec. 1. Several moderate senators of both parties hope the Senate will wait to vote on repealing the ban until after the report is released.
If the Justice Department declines to appeal the ruling, the Defense Department would be required to issue instructions to military leaders on how to stop enforcing the policy, a senior military official said.
In a separate federal case closely watched by gay rights groups, the Justice Department announced Tuesday that it plans to appeal a decision ruling the federal ban on same-sex marriages unconstitutional. A Boston federal district court judge said in July that the 1996 Defense of Marriage Act interfered with a state's right to define marriage. The case now moves to the 1st Circuit Court of Appeals.
Staff writer Greg Jaffe contributed to this report.
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