Tuesday, October 12, 2010


Judge orders 'don't ask, don't tell' injunction

By JULIE WATSON Associated Press Writer © 2010 The Associated Press

Oct. 12, 2010, 3:04PM

SAN DIEGO — A federal judge issued a worldwide injunction Tuesday stopping enforcement of the "don't ask, don't tell" policy, ending the military's 17-year-old ban on openly gay troops.
U.S. District Judge Virginia Phillips' landmark ruling 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 and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.
Servicemembers United is the nation's largest organization of gay and lesbian troops and veterans.
U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips' ruling stand.
Phillips declared the law unconstitutional after a two-week nonjury trial 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.
"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.
She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.
Before issuing her order, Phillips had asked for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.
The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.
"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.
Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that 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.
Legal experts say the Obama administration could choose to not appeal her ruling to end the ban — but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.
"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.
Tracy Schmaler, spokeswoman for the Department of Justice, said the government was reviewing Phillips' ruling Tuesday and had no immediate comment.
Gay rights advocates say they worry they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill earlier this 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.
Woods said the administration should be seizing the opportunity to let a judge do what politics has been unable to do.
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.


JustinO'Shea said...

Excellent "gift" on this 12th anniversary of Matthew Shepard's death!

This judge Virginia Philips did what Pres Obama and his cronies couldn't/wouldn't do! Bet the pres is relieved. . .it's off his beck!!!

PhotosbyErich said...

Congrats on the good news, Justi! Glad there was something special to mark the occasion. It's not clear how much longer the military can try to hold on to its dated policy given the recent court decisions!

BTW... Your photos of the Cape make me long for home these days... especially as Fall weather sets in on New England. It is beautiful then.

- Erich

JustinO'Shea said...

Did I miss something? My read is the injuction is for NOW. . .EVERYWHERE. 60 days to appeal if they dare, but the BAN is done, dead, over, finis!

So if military gays decided to celebrate this event by a HUGE HOT TONGUE KISS. . . .let the Brass eat s#@t and die!


Waiting to read J's opinion.. ;-)
Btw, this action was instigated by Republicans. . . .gay ones! Appropriate. hahahahahahahahaa


Jabacue said...

The first big step!!! Good for M.Judge! Now, let's move forward along with the rest of the civilized world!

J said...

So you want my take on it? Here it is: I will celebrate the demise of DODT when it happens. I will not celebrate this injunction because it constitutes a grave abuse of judicial discretion. One district judge in California has no business enjoining the Department of Defense in the absence of imminent danger. I expect this injunction might last a few days before it is formally superceded, and I doubt if the military will pay it any attention.
This has to be resolved on the national level, probably after the DOD review of the policy currently underway. I don't know why you guys insist on celebrating when you know the battle is far from won.
Now why don't you ask me about that meathead Paladino who is running for governor of NY?

JustinO'Shea said...

J. . .who really gives a hoot about meathead Palladino. . .however he may conceive himself to be? Do you. . .really??

Ahaaaa. . .I guess this is one of the differences between generations.
We are still spontaneous, enthused. . unless it has been beaten out of us. . .and we like celebrations. . .even the slightest glimmer of hope in this sad dismal world we are inheriting is something to hope in and hang onto. We need some tangible hopes in this "valley of tears".

If we have to wait till everything is carved in cement/ nailed down in mahogany or laid in state in a casket. . . .why bother? It's just too late!!!

You get my point. . . .?


Gary Kelly said...

JustinO... name a generation that hasn't inherited a "sad and dismal" world.

Hitler was still ranting and raving when I was born in 1944.

You say that the difference between generations is that you are still spontaneous and enthusiastic.

I think the operative word in your statement is "still".

What is it, do you think, that makes older folks less spontaneous and enthusiastic?

J said...

Justin, you would have received the same response from me if you had asked my opinion on this when I was 28, after my second year in law school. On issues of this magnitude, involving deployed troops and the largest and most important department of our national government, it is inappropriate for a single district judge to issue an injunction prior to appellate review. There's no problem with her issuing the decision, but she shouldn't ram it down the throat of the Defense Department as if she had the authority of the entire Supreme Court, or the President and Secretary of Defense rolled into one. I know the concept of judicial discretion never finds favor with the impatient, but it is a very important concept in the law. I don't like DODT any more than you do, but there's a right way to go about disposing of it.
This injunction has placed Obama in a very difficult position. If he decides he doesn't want to alienate his political base by asking the Justice Department to seek a stay of the injunction until the review is complete, he risks alienating undecided voters two weeks before an election in which his legislative majorities are in jeopardy because he allowed one district judge to "legislate from the bench". Trust me, this is not a good situation.
These things are like a chess game. While you're dancing around because you put your opponent's king in check you may well have overlooked what will happen three or more moves later. You should celebrate only after checkmate.
By the way, I don't know how to take the oblique suggestion that this opinion, which you solicited, is noise from the grave.

JustinO'Shea said...

J. . .I expressed my opinion. You expressed your much more experienced views, reasons, logical explanation.

I was unaware that I had said anything close to the sentiments in your last sentence. That was not my intent. I am sorry you read it this way.

. . . .J

Gary Kelly said...

I think J has explained the meaning of spontaneous and enthusiastic. Hehe.

Don't worry about it JustinO, it's all part and parcel of the work in progress.

JustinO'Shea said...

Oh I am not worried at all. Just that I want to be polite and hopefully not offensive. My thoughts feelings and opinions are mine and I do reserve the right to change them/it. LOL None of them are carved in marble.

I wouldn't pretend to have the knowledge, experience, savvy of an experienced trial lawyer. ;-) Besides law and the legal system are not my field.

Thank God - The Universe-Who/Whatever to be sufficiently vague to encompass everyone's diversity - for the gifts of enthusiasm and spontaneity! Think how flat/blan/borrrriiinngggg life would be without these gifts!

[Btw, the etymology of 'enthusiasm' is Greek. . en theou = in god. . . can't get away from IT. hahahaaa. Thanks the cosmos for ability to recall trivia-in-passing. . ;-) Picked that item up in psych 101. I remember most; forget little. ho ho ho ]

I've opted for a wonder-filled day.


J said...

I guess I got a little pissy last night, and apologize for being so arch.
The news this morning is full of relevant stories. First, the Justice Department has appealed a district judge's invalidation of the Massachusetts Defence of Marriage Act. If they are willing to do that, they will appeal this latest California injunction. The political connumdrum the injunction presents is also well discussed and the religious right is already beating its drums.