Federal Judge Stops Enforcement of “Don’t Ask Don’t Tell”

By Susan Brinkmann, OCDS
Staff Journalist

U.S. District Judge Virginia Phillips has issued a worldwide injunction to halt enforcement of the “Don’t Ask Don’t Tell” policy which bans openly gay men and women from serving in the military.

Phillips declared the law unconstitutional after conducting a two-week nonjury trial in federal court in Riverside, California. She said the gay activist group known as the Log Cabin Republicans, who filed the lawsuit in 2004, “established at trial that the Don’t Ask Don’t Tell Act irreparably injures service members by infringing their fundamental rights.”

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, she said.

“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,” her ruling stated.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

The Department of Justice attorneys had asked Phillips to limit her ruling to just members of the Log Cabin Republicans and to allow Congress to decide the issue rather than her court. They also warned that doing away with the policy during war time could jeopardize our troops and national security. 

Legal experts say the Obama administration could choose to not appeal her ruling to end the ban  but government attorneys are not likely to do so because President Barack Obama has made it clear that he believes it is the role of Congress to repeal the policy.

“The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” said Dan Woods, an attorney for the Log Cabin group.

He went on to say that the administration should seize the opportunity to let a judge do what politics has been unable to do.

However, this type of judicial activism, especially when it could jeopardize national security, is considered an outrage by many.

“Judge Phillips is playing politics with our national defense,” says Tony Perkins, president of the Family Research Council. “Once again, an activist federal judge is using the military to advance a liberal social agenda, disregarding the views of all four military service chiefs and the constitutional role of Congress. Last month, the U.S. Senate voted against proceeding with overturning the law in part because of the strong opposition of military leaders and also in deference to the Pentagon’s ongoing study of the potential impact on readiness and morale of allowing homosexuals to serve.

“This move will only further the desire of voters to change Congress. 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.

“Family Research Council calls on the Department of Justice to fulfill its obligation to defend the law vigorously through the appeals process. Congress should make clear that it will not tolerate this judicial activism,” concluded Perkins.

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