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No delay for 'don't ask, don't tell' ruling, so Pentagon takes gays - for now

A federal judge refuses to suspend last week's ruling that the Pentagon must stop enforcement of 'don't ask, don't tell.' So the Pentagon says it will comply and accept openly gay recruits. But it cautions that the ruling is being appealed.

By Staff writer / October 19, 2010

Lt. Dan Choi, a gay Army officer honorably discharged under the 'don't ask, don't tell' policy, speaks to the media after attempting to re-enlist at the Times Square military recruitment station in New York Tuesday.

Lucas Jackson/Reuters

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Washington

A federal judge in California refused on Tuesday to postpone a worldwide injunction issued last week blocking enforcement of the Defense Department’s "don’t ask, don’t tell" policy banning gays from serving openly in the military.

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US District Judge Virginia Phillips said the government had failed to prove the injunction would disrupt military operations or undercut readiness.

Instead, she said the don’t ask, don’t tell policy itself undercuts military efficiency. The judge said it also irreparably injures service members by violating their fundamental rights.

The action sets the stage for an expanding national battle over gay rights in the federal courts on issues ranging from receipt of federal benefits, to gay marriage, to service in the armed forces.

“[The government has] not shown … a likelihood [it] will suffer irreparable harm,” Judge Phillips wrote in a six-page decision rejecting the requested stay. “The injunction requires [the government] to cease investigating and discharging service members pursuant to the Act. It does not affect [the government’s] ability to revise [its] policies and regulations nor to develop training and education programs.”

Government lawyers had asked Judge Phillips to stay her ruling invalidating the don’t ask, don’t tell policy to allow enough time to appeal the case to the Ninth US Circuit Court of Appeals.

With the judge’s refusal, the government is expected to ask the Ninth Circuit to issue its own stay. Failing that, the stay issue could be presented to the US Supreme Court.

In the meantime, the Defense Department has agreed to suspend its enforcement of the policy. The Pentagon's undersecretary for personnel and readiness, Clifford Stanley, said in a memo that openly gay recruits are now free begin the process of joining the military.

He did caution, however, that gay recruits should be told what could happen later because "a certain amount of uncertainty now exists about the future of the 'don't ask, don't tell' law."

It is unclear what might happen if the judge’s ruling is overturned on appeal and the don’t ask, don’t tell policy is reinstated.

Judge dismisses Pentagon claims

Government lawyers had warned Phillips that the injunction would cause irreparable harm to the country, disrupting ongoing military operations and undermining military readiness, combat effectiveness, and morale.

Lawyers challenging don’t ask, don’t tell, responded that ending the policy would actually improve morale and increase military readiness, cohesion, and combat effectiveness.

“The injunction does not require the military to do anything affirmatively,” wrote Dan Woods in a brief on behalf of Log Cabin Republicans, a gay-rights group that sued to overturn the policy.

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