In Third Court Victory For Gay Rights, Judge Says
She'll Block Don't Ask, Don't Tell

Rachel Slajda |
September 10, 2010, 3:26PM
http://tpmmuckraker.talkingpointsmemo.com/2010/09/judge_says_shell_block_dadt.php

In ruling Don't Ask, Don't Tell unconstitutional, U.S.
District Judge Virginia Philips said she will issue an
injunction to stop the military from enforcing the
policy.

In her ruling, in which she said DADT violates the
Fifth and First Amendment rights of gay and lesbian
service members, Philips agreed to issue an injunction
against the policy. She gave the plaintiffs, the Log
Cabin Republicans, until Sept. 16 to submit a proposed
injunction and the defendants, in this case the U.S.
government, another seven days to object.

A spokesman for the Justice Department tells TPM the
administration has not decided whether to appeal the
ruling, and had no comment on the potential injunction.

Appeals to the ruling and objections to the injunction,
which are likely, mean that DADT is probably not going
anywhere until Congress repeals it.

Legislative repeal has been an ongoing debate this
year, as the military conducts a review of how best to
institute repeal on the ground. Defense Secretary
Robert Gates has said it is not a question of if, but
when -- but he has also warned Congress not to try to
repeal the law before the review, due at the beginning
of December, is complete.

Repeal is already in the House version of the defense
authorization bill. But it still faces significant
hurdles. First, it must make it through conference
committee. Second, if the bill also includes funding
for a fighter engine the military doesn't want --
something it very well could include -- President Obama
has promised to veto it.

Still, the ruling is the third victory for gay rights
proponents in three months: In July, a judge ruled the
federal Defense of Marriage Act unconstitutional and in
August, another judge ruled California's Proposition 8
unconstitutional. The DOJ has until Oct. 11 to decide
whether to appeal the DOMA ruling. As for Prop 8, the
defendants -- the state of California -- have decided
not to appeal, but the appeals court may still grant
anti-gay groups the right to appeal themselves.

In her ruling, Philips said the Obama administration
did little to defend the policy.

"In order to justify the encroachment on these rights,
defendants faced the burden at trial of showing the
'don't ask, don't tell' act was necessary to
significantly further the government's important
interests in military readiness and unit cohesion," she
wrote. "Defendants failed to meet that burden."

Read the full decision:

http://www.scribd.com/doc/37183082/Decision-finding-DADT-is-unconstitutional

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