by Rex Wockner
U.S. District Judge Virginia Phillips in Riverside, Calif., issued a permanent worldwide injunction Oct. 12 immediately barring the U.S. government from making any further use of the 'Don't Ask, Don't Tell' military gay ban.
"(T)he act known as 'Don't Ask, Don't Tell' infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution," Phillips wrote.
"(T)he court … 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," she declared.
Phillips' injunction further "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. S 654 or its implementing regulations, on or prior to the date of this Judgment."
She also granted plaintiff Log Cabin Republicans' request to apply for attorneys' fees and LCR's request to file a motion for costs of suit.
The injunction follows a nonjury trial that was held July 13-16, and Phillips' issuance of her opinion striking down DADT on Sept. 9.
"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. "While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the 9th (U.S.) Circuit (Court of Appeals). If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-overdue decision to remain in effect."
LCR attorney Dan Woods called the injunction "a complete and total victory for Log Cabin Republicans."
Indeed, for the moment, DADT is dead. It is unknown if the U.S. government will seek a stay of the injunction, challenge the worldwide scope of the injunction, or appeal the underlying decision.
The government is not required to do so. President Barack Obama has expressed strong opposition to DADT on numerous occasions.
The Department of Justice said it had no comment on the injunction.
"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," said Human Rights Campaign President Joe Solmonese. "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."
Servicemembers Legal Defense Network's legal director, Aaron Tax, commented: "We applaud Judge Phillips for putting an immediate stop to all investigations and discharges under this unconstitutional law. As explained by the judge, this order applies across the military. … We have clients under investigation and facing discharge right now. We'll be monitoring each case over the coming days."
