Judge denies DADT stay; focus shifts to 9th

A federal judge on Tuesday evening denied the federal government’s request to postpone enforcement of an injunction she issued last week to stop enforcement of “Don’t Ask, Don’t Tell.”

In a six-page order, U.S. District Court Judge Virginia Phillips on October 19 denied a request for a stay from the U.S. Department of Justice, seeking to stop enforcement of Phillips’ October 12 injunction.

In her order Tuesday, Phillips noted that, before she issued the injunction, DOJ “provided no evidence regarding the alleged disruption” to military readiness or regarding the “need to revise dozens of policies and regulations” that DOJ claimed would be associated with compliance with the injunction.

And at a hearing on the injunction October 18, she said, DOJ’s evidence was “unpersuasive” and “belied by the uncontroverted evidence presented at trial regarding the Don’t Ask, Don’t Tell Act’s effect on military readiness and unit cohesion.”

The Log Cabin Republicans filed a lawsuit—LCR v. U.S.—which was heard by Phillips in July, during two weeks of testimony at the U.S. District Court for Central California, in Riverside. Phillips noted that, at trial, DOJ “chose not to rebut” evidence submitted by LCR.

“So, to the extent [DOJ attorneys] now argue that stopping discharge under the [DADT] Act will harm military readiness and unit

cohesion, they had the chance to introduce evidence to that effect at trial,” wrote Phillips. DOJ “did not do so” and the evidence it “belatedly present now does not meet their burden to obtain a stay.”

“The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights,” concluded Phillips. And while DOJ’s interest in preserving a status quo and enforcing its laws are “important,” she said, “these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.”

Phillips ruled on September 9 that DADT violates the First Amendment rights to free speech and the Fifth Amendment right to due process in the federal constitution. She formally entered her opinion on October 12, along with the injunction, ordering the federal government to stop enforcement of DADT.

The DOJ has already indicated it would seek a stay from the 9th Circuit U.S. Court of Appeals, if necessary, and the 9th Circuit will likely act on that motion quickly.

Meanwhile, Log Cabin praised Phillips’ order.

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, executive director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.”

Servicemembers Legal Defense Network issued a statement of caution.

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away,” said SLDN Executive Director Aubrey Sarvis. “The Department of Justice will immediately ask the 9th Circuit to stay the injunction…. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

The House has already passed a measure that includes repeal of DADT, but the Senate last month failed to break a Republican-led filibuster largely aimed at stopping the repeal. Senate Majority Leader Harry Reid has indicated he plans to bring the defense spending bill, which includes the repeal measure, to the floor when the Senate reconvenes following mid-term elections next month.

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