RIVERSIDE, Calif. — A federal judge said today that she is inclined to deny a government request to delay her order that immediately stopped the military from enforcing its ban on openly gay service members.
U.S. District Judge Virginia Phillips said she would review the arguments from Justice Department lawyers and issue a ruling as early as today, or by Tuesday.
If she rejects the request, the Justice Department officials say they would appeal to what experts say are likely to be friendlier venues: the U.S. Court of Appeals for the 9th Circuit in San Francisco and, ultimately, the U.S. Supreme Court.
“The farther the decision gets from the presentation of evidence in the trial court, the more likely it is that courts will assume the military must have some critically important interest at stake,” said Diane Mazur, a law professor who opposes the policy.
The military has promised to abide by the injunction against the “don’t ask, don’t tell” policy as long as her order remained in place.
Government attorneys had asked Phillips for the temporarily halt while they appealed, saying that forcing an abrupt change of policy could damage troop morale as they fought two wars.
The judge declared the policy unconstitutional on Sept. 9, saying it violated due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.
Phillips said the policy doesn’t help military readiness and instead has a “direct and deleterious effect” on the armed services by hurting recruiting and requiring the discharge of service members with critical skills and training.
At the time, she asked both sides to give her input about an injunction and, on Monday, called the government request “untimely.” She said the Justice Department had plenty of opportunity to modify her injunction before she ordered it on Oct. 12.
Phillips also said the government did not present evidence at the trial to show how her order would cause irreparable harm to troops.
Justice Department attorney Paul Freeborne told her the government had no reason to respond until her order came down. He said her nationwide injunction was unrealistic.
“You’re requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal,” Freeborne told her.
Richard Socarides, a former Clinton White House adviser on gay rights, said he does not expect Phillips to grant the request.
“She seems to have lost her patience with the government’s position and I think that’s reflected in her ruling up until now,” Socarides said. “But they will probably go to the appellate court or Supreme Court and you’ll see in a couple of days that this order has been stayed.”
The Log Cabin Republicans, the gay rights group, filed the lawsuit in 2004 to stop the ban’s enforcement. The group says more than 13,500 service members have been fired under the Clinton administration-era policy.
Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves. President Barack Obama has said he wants the law repealed in Congress.
Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military’s top uniformed officer, both say they support lifting the ban. But Gates and Mullen also have warned that they would prefer to move slowly.
Gates has ordered a sweeping study due Dec. 1 that includes a survey of troops and their families.
The president agreed to the Pentagon study but also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn’t suffer.
That legislation passed the House but was blocked in the Senate by Republicans.
Gay rights activists worry that expected Republican gains in the midterm elections next month could make it even more difficult to overturn the policy in Congress.