Wednesday October 20, 2010
Judge Denies Request for Stay on Ruling against Don’t Ask, Don’t Tell
By Peter J. Smith
UPDATE 7:30pm EST: A federal appeals court Wednesday evening stayed the ruling, permitting the U.S. government temporarily to continue banning open homosexuality in the military, according to Reuters.
RIVERSIDE, California, October 20, 2010 (LifeSiteNews.com) – A federal judge on Tuesday rejected the Obama Justice Department’s request for a stay on her court order against the nation’s ban on homosexuals serving in the military. Now the government is asking the appeals court in California to step in.
Justice Department attorneys had requested an emergency stay from U.S. District Judge Virginia A. Phillips in Riverside, who ruled in September that both 10 U.S.C. § 654, the 1993 law banning homosexuals from service in the armed forces, and “Don’t Ask, Don’t Tell,” the Pentagon’s enforcement policy for the ban, violated the First Amendment and due process rights of homosexuals in the military.
Phillips issued a worldwide injunction on DADT last week, ordering the armed forces “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.”
The Associated Press reports that as a result of Phillips’s order, the Pentagon has now instructed recruiters to allow open homosexuals to sign up, while informing them that the legal situation with DADT could change at any moment.
In their motion to Phillips, the Justice Department argued that overturning DADT now would hurt the Pentagon’s efforts to study what effect repeal of DADT and the 1993 law would have on the military.
But Phillips denied the request Tuesday evening, saying she found the government’s arguments unconvincing and vague.
Tony Perkins, a former U.S. Marine and President of the Family Research Council, blasted Phillips for her refusal to stay her controversial ruling, saying it “should have been granted to avoid the confusion that is already occurring” over how the Pentagon is handling homosexual recruits.
“The courts have long recognized the constitutional role of Congress aided by military leaders in determining personnel policy,” said Perkins. “However, Judge Phillips clearly believes she knows better than all four service chiefs who have spoken out against overturning ‘Don’t Ask, Don’t Tell.’”
Now the Justice Department is asking the 9th U.S. Circuit Court of Appeals to step in and issue an immediate injunction on Phillips’ ruling.
The attorneys explained in a 25-page brief that President Obama opposes the law and believes it should be repealed. However, they said that the president believes that Congress should overturn its own statute, and that numerous court precedents have found no constitutional difficulty with DADT and the 1993 law.
That process, they explained, demands that the Defense Department committee in charge of researching the effects on military readiness by abolishing DADT be allowed to complete its report, due December 1.
“An abrupt, court-ordered end to the statute would pretermit the Working Group’s efforts to ensure that the military completes development of the necessary policies and regulations for a successful and orderly implementation of any repeal,” they stated.
The government’s attorneys also argued that Phillips’ decision should be reversed, because her worldwide injunction violates the principle of comity, as other district judges have ruled in favor of 10 U.S.C. § 654 and DADT. They said her ruling presumes to overrule those judges and U.S. law as it has developed in other U.S. circuit courts.
See previous coverage by LifeSiteNews.com:
Judge Orders Military to Stop Enforcement of ‘Don’t Ask, Don’t Tell’
https://www.lifesitenews.com/ldn/2010/oct/10101213.html
Federal Judge Deems Military ‘Don’t Ask, Don’t Tell’ Rule ‘Unconstitutional’
https://www.lifesitenews.com/ldn/2010/sep/10091002.html