Monday, October 18, 2010

Judge says 'don't ask, don't tell' must end now

Judge says 'don't ask, don't tell' must end now
Mimi Hall, USA TODAY

WASHINGTON — A federal judge Tuesday ordered an immediate end to enforcement of the military's "don't ask, don't tell" ban on lesbians and gay men serving openly in the armed forces.

The court ruling is a "historic and courageous step in the right direction," says Alexander Nicholson of Servicemembers United, the nation's largest group of gay and lesbian troops and veterans.

What happens next, however, is unclear. Neither the Pentagon nor the Justice Department, which has 60 days to appeal, would comment.

Although President Obama says he opposes the 1993 law that set the military's policy on gays, he has ordered the Pentagon to study the effect a repeal would have on the armed forces, and the results of that study aren't due until December. The White House also says that Congress, not the courts, needs to repeal the law, but Senate Republicans have blocked those efforts.
The law forbids gay servicemembers from revealing their sexual orientation, and it requires their superiors not to ask unless they believe the law is being broken. Last year, according to Bloomberg News, the military discharged 259 men and 169 women under the law. Nicholson's group says 14,000 servicemembers have been discharged under the policy since it took effect.

"The president will continue to work ... to change the law that he believes is fundamentally unfair," White House spokesman Robert Gibbs said.

Yale law professor William Eskridge said that with her ruling, U.S. District Judge Virginia Phillips "is stepping in to break a deadlock that the political process was unable to resolve. The ball is in the Department of Justice's court now."

Phillips, in Riverside, Calif., ruled that enforcement of the law she had previously declared unconstitutional must be halted immediately because it "irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates a host of rights: due process, freedom of speech and the right to petition the government for redress.

Phillips was nominated to the bench by President Clinton in 1999.

Conservative groups denounced the ruling. Tony Perkins, president of the Family Research Council, accused Phillips of "using the military to advance a liberal social agenda."

At the Justice Department, spokeswoman Tracy Schmaler declined to comment because officials are reviewing the ruling. Pentagon spokeswoman Cynthia O. Smith also declined to comment because the ruling had just been issued.

The case was brought in 2004 by the gay-rights group Log Cabin Republicans. Dan Woods, a lawyer for the group, said Phillips' ruling "reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country."

The Obama administration should let the judge's ruling stand and "stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence," said Joe Solmonese, of the Human Rights Campaign, which promotes gay rights.

In June 2009, the U.S. Supreme Court turned down a challenge to the policy brought by former Army Capt. James Pietrangelo, who was dismissed under the rule. A federal appeals court in Boston earlier threw out a lawsuit filed by Pietrangelo and 11 other veterans.

Contributing: Kevin Johnson, Jim Michaels, David Jackson; Associated Press

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