Pentagon must stop 'don't ask, don't tell,' federal judge rules

Judge Virginia Phillips on Tuesday ordered the Pentagon to stop enforcing its 'don't ask, don't tell' ban on openly gay service members. Though experts say the ruling would likely be overturned on appeal, it is an important moment for the gay-rights movement.

J. Pat Carter/AP
Larry Whitt, who left the Navy after serving 12 years because he is gay, joins other protesters who watched President Obama arrive in Coral Gables, Fla., Monday. A federal judge on Tuesday ordered the Pentagon to stop enforcing the 'don't ask, don't tell' policy.

A federal judge Tuesday ordered the Department of Defense to stop enforcing “don’t ask, don’t tell” – the law that prohibits openly gay people from serving in the military.

US District Judge Virginia Phillips’s decision – widely cheered by gay-rights organizations nationwide – said in part, “There is no adequate remedy at law to prevent the continued violation of service members’ rights or to compensate them for violation of their rights.”

The decision will likely be overturned if it is appealed, say legal analysts. But it is important because it impels the courts – and potentially the US Supreme Court – to confront the policy legally. Moreover, the ruling marks another in a growing number of federal court decisions strongly favoring gay rights.

The Department of Defense and Department of Justice have not formally commented on the decision yet.

Some legal experts expected the Obama administration to appeal, even though “the Obama administration is sympathetic to the ruling,” says Jesse Choper, a professor at the University of California's Boalt School of Law in Berkeley.

He suggests that the Department of Justice will say that Tuesday's decision is premature without the input of the military – which is currently reviewing the policy. “It would be very unusual for the government to kick it in and not challenge this," says Mr. Choper.

Yet he says Judge Phillips’s arguments are strong and not dissimilar to the reasoning of US District Court Judge Vaughn Walker in California’s landmark Proposition 8 gay marriage case, which found that “California has no interest in discriminating against gay men and lesbians.”

Phillips "is saying there is insufficient reason that the government needs to be engaging in this form of discrimination, and that this is a cohort that ought to be given sympathetic treatment by the courts,” says Choper.

Importantly, the decision also takes into account the US Supreme Court 2003 decision, Lawrence v. Texas, which held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment, notes David Cruz, professor of law at the University of Southern California.

The Phillips decision “takes seriously the concerns of the military and the Department of Justice but concludes that despite those arguments, it has to see this as unconstitutional,” he says.

The Justice Department has 60 days to appeal. Some legal experts are still not sure that it will.

“In light of the Obama administration’s opposition to the policy, it may simply not appeal and the ruling would go into effect,” says Erwin Chemerinsky, dean of the University of California, Irvine, School of Law.

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