NY Times
A federal judge on Tuesday ordered the United States military to stop enforcing the “don’t ask, don’t tell” law that prohibits openly gay and bisexual soldiers from serving.
Judge Virginia A. Phillips of Federal District Court wrote that the 17-year-old policy “infringes the fundamental rights of United States service members and prospective service members” and violates their rights of due process and freedom of speech. She “permanently enjoins” enforcement of the law, she ruled, and ordered the military “immediately to suspend and discontinue” any investigation or proceedings to dismiss members of the services.
While Tuesday’s decision is likely to be appealed by the government, Judge Phillips's injunction represents a significant new milestone for gay rights in the United States.
Two other recent decisions have overturned restrictions on gay rights at the state and federal level, but Tuesday’s ruling could have a more sweeping impact, as it would apply to all United States service members anywhere in the world.
The case is Log Cabin Republicans v. United States of America. Christian Berle, the acting executive director of the Log Cabin Republicans, applauded the judge’s action, saying it would make the armed forces stronger.
“Lifting the ban on open service will allow our armed forces to recruit the best and brightest, and will not have their hands tied because of an individual’s sexual orientation.”
Alex Nicholson, the named plaintiff in the lawsuit, said that with the breadth of the decision, “We sort of won the lottery.”
The law has long been a point of contention. President Obama has asked Congress to repeal don’t ask, don’t tell, but the Department of Justice defended the law under rules requiring the department to defend laws passed by Congress under most circumstances.
Judge Phillips, who was appointed by President Bill Clinton, declared the law unconstitutional in an opinion issued on Sept. 9. She then sought recommendations from the parties as to what kind of legal relief should follow.
The Log Cabin Republicans, the gay organization that brought the suit, recommended a nationwide injunction. The Department of Justice recommended narrower action.
Arguing that “the United States is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress” the administrated noted that that the law had been found constitutional in other courts. It asked that the judge’s injunction apply only to members of Log Cabin Republicans and not to the military over all.
In February, Robert M. Gates, the Secretary of Defense, and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to repeal the law. The House voted in May to end don’t ask don’t tell, but the Senate last month voted not to take up the bill allowing repeal. Advocates for repeal have pushed for that vote to be reconsidered during the lame duck session of Congress following the midterm election.
Jim Manley, a spokesman for Senate Majority Leader Harry Reid, said: “Senator Reid is encouraged by the decision, and still hopes to be able to take the bill to the floor after the elections in November.”
Tony Perkins, the president of the Family Research Council and a proponent of the don’t ask, don’t tell law, criticized the ruling, accusing Judge Phillips of “playing politics with our national defense.”
In a statement, Mr. Perkins, a former Marine, said, “Once again, an activist federal judge is using the military to advance a liberal social agenda,” and noted that there is still “strong opposition of military leaders” to changing the law, and that the Senate’s decision to put off a vote on repeal was due in part to an ongoing study on the “the potential impact on readiness and morale of allowing homosexuals to serve.”
He predicted that the decision would have a political ripple effect in the upcoming elections. “Americans are upset and want to change Congress and the face of government because of activist judges and arrogant politicians who will not listen to the convictions of most Americans and, as importantly, the Constitution’s limits on what the courts and Congress can and cannot do.”
The government has 60 days to file an appeal. Tracy Schmaler, a Justice spokeswoman, said “we’re reviewing it,” and that there would be no other immediate comment.
The government is expected, however, to appeal the injunction and seek to keep it from taking effect pending appeal. That is still a risky strategy, said Richard Socarides, an adviser to President Clinton on gay issues. “There will be an increasingly high price to pay politically for enforcing a law which 70 percent of the American people oppose and a core democratic constituency abhors.”
The don’t ask, don’t tell case is one of three recent decisions in the federal courts in which federal judges have pushed back against laws that restrict gay rights. Another judge in California struck down California’s ban on same-sex marriages in August. And in July, a federal judge in Massachusetts ruled that a law prohibiting the federal government from recognizing same-sex marriages was unconstitutional, opening the way for federal benefits in such unions.
While President Obama has been critical of the Defense of Marriage Act the Justice Department has defended it in the federal court challenge. On Tuesday, the department filed an appeal in the Defense of Marriage Act, and issued a statement that might well be echoed in coming weeks in the military case.
“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed, said Ms. Schmaler, the department spokeswoman. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”
Activists for gay rights said they are cheered by the overall sense of the three recent rulings. Chad Griffin, the board president of the American Foundation for Equal Rights, which sponsored the litigation against California’s same-sex ban, said “with the momentum of these three court decisions, I think it really is the beginning of the end of state-sanctioned discrimination in this country,” he said.
Judge Virginia A. Phillips of Federal District Court wrote that the 17-year-old policy “infringes the fundamental rights of United States service members and prospective service members” and violates their rights of due process and freedom of speech. She “permanently enjoins” enforcement of the law, she ruled, and ordered the military “immediately to suspend and discontinue” any investigation or proceedings to dismiss members of the services.
While Tuesday’s decision is likely to be appealed by the government, Judge Phillips's injunction represents a significant new milestone for gay rights in the United States.
Two other recent decisions have overturned restrictions on gay rights at the state and federal level, but Tuesday’s ruling could have a more sweeping impact, as it would apply to all United States service members anywhere in the world.
The case is Log Cabin Republicans v. United States of America. Christian Berle, the acting executive director of the Log Cabin Republicans, applauded the judge’s action, saying it would make the armed forces stronger.
“Lifting the ban on open service will allow our armed forces to recruit the best and brightest, and will not have their hands tied because of an individual’s sexual orientation.”
Alex Nicholson, the named plaintiff in the lawsuit, said that with the breadth of the decision, “We sort of won the lottery.”
The law has long been a point of contention. President Obama has asked Congress to repeal don’t ask, don’t tell, but the Department of Justice defended the law under rules requiring the department to defend laws passed by Congress under most circumstances.
Judge Phillips, who was appointed by President Bill Clinton, declared the law unconstitutional in an opinion issued on Sept. 9. She then sought recommendations from the parties as to what kind of legal relief should follow.
The Log Cabin Republicans, the gay organization that brought the suit, recommended a nationwide injunction. The Department of Justice recommended narrower action.
Arguing that “the United States is not a typical defendant, and a court must exercise caution before entering an order that would limit the ability of the government to enforce a law duly enacted by Congress” the administrated noted that that the law had been found constitutional in other courts. It asked that the judge’s injunction apply only to members of Log Cabin Republicans and not to the military over all.
In February, Robert M. Gates, the Secretary of Defense, and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, asked Congress to repeal the law. The House voted in May to end don’t ask don’t tell, but the Senate last month voted not to take up the bill allowing repeal. Advocates for repeal have pushed for that vote to be reconsidered during the lame duck session of Congress following the midterm election.
Jim Manley, a spokesman for Senate Majority Leader Harry Reid, said: “Senator Reid is encouraged by the decision, and still hopes to be able to take the bill to the floor after the elections in November.”
Tony Perkins, the president of the Family Research Council and a proponent of the don’t ask, don’t tell law, criticized the ruling, accusing Judge Phillips of “playing politics with our national defense.”
In a statement, Mr. Perkins, a former Marine, said, “Once again, an activist federal judge is using the military to advance a liberal social agenda,” and noted that there is still “strong opposition of military leaders” to changing the law, and that the Senate’s decision to put off a vote on repeal was due in part to an ongoing study on the “the potential impact on readiness and morale of allowing homosexuals to serve.”
He predicted that the decision would have a political ripple effect in the upcoming elections. “Americans are upset and want to change Congress and the face of government because of activist judges and arrogant politicians who will not listen to the convictions of most Americans and, as importantly, the Constitution’s limits on what the courts and Congress can and cannot do.”
The government has 60 days to file an appeal. Tracy Schmaler, a Justice spokeswoman, said “we’re reviewing it,” and that there would be no other immediate comment.
The government is expected, however, to appeal the injunction and seek to keep it from taking effect pending appeal. That is still a risky strategy, said Richard Socarides, an adviser to President Clinton on gay issues. “There will be an increasingly high price to pay politically for enforcing a law which 70 percent of the American people oppose and a core democratic constituency abhors.”
The don’t ask, don’t tell case is one of three recent decisions in the federal courts in which federal judges have pushed back against laws that restrict gay rights. Another judge in California struck down California’s ban on same-sex marriages in August. And in July, a federal judge in Massachusetts ruled that a law prohibiting the federal government from recognizing same-sex marriages was unconstitutional, opening the way for federal benefits in such unions.
While President Obama has been critical of the Defense of Marriage Act the Justice Department has defended it in the federal court challenge. On Tuesday, the department filed an appeal in the Defense of Marriage Act, and issued a statement that might well be echoed in coming weeks in the military case.
“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed, said Ms. Schmaler, the department spokeswoman. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”
Activists for gay rights said they are cheered by the overall sense of the three recent rulings. Chad Griffin, the board president of the American Foundation for Equal Rights, which sponsored the litigation against California’s same-sex ban, said “with the momentum of these three court decisions, I think it really is the beginning of the end of state-sanctioned discrimination in this country,” he said.
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