Judge orders military to halt ban on gays

WASHINGTON – A federal judge in California issued a permanent, worldwide ban Tuesday on the Pentagon’s “don’t ask, don’t tell” policy on gays and lesbians in the military and ordered the Department of Defense to immediately halt any ongoing efforts to remove anyone because of sexual preference.

The government now has 60 days to appeal the ruling, which gives the administration until after the midterm elections next month to make a decision. But it also presents President Barack Obama with a dilemma as he continues to try to rally his Democratic base.

As a presidential candidate, Obama said he would work to do away with the law. But now, should his Justice Department appeal the ruling in a bid to keep the policy in place, it could anger many of the president’s liberal supporters, something Obama and congressional Democrats can ill afford.

Tony Perkins, president of the conservative Family Research Council, called on the administration to appeal immediately. Otherwise, he said, the ruling “will only further the desire of voters to change Congress” because of rulings like this by “activist judges and arrogant politicians.”

But Department of Justice officials said no decision has been made on an appeal, though the government has known for a month the ruling might be coming because U.S. District Judge Virginia A. Phillips in Riverside, Calif., said on Sept. 9 she considered the ban unconstitutional.

At the Pentagon, spokeswoman Cynthia O. Smith also said the order was under review. Other Pentagon officials said a task force created to examine the issue has not completed its study and that town hall meetings with military families were continuing, as was an online opinion survey. If there is no appeal, they said, the ruling would short-circuit that effort.

In her three-page order Tuesday, Phillips declared the don’t ask, don’t tell policy “infringes on the fundamental rights of United States service members and prospective service members.”

She also said it violates due process and freedom of speech, and does not allow targeted service members “to petition the government for redress of grievances” to fight for their jobs if they are outed as gay or lesbian.

She ordered the military to immediately stop “enforcing or applying” the policy and implementing the regulations “against any person under their jurisdiction or command.” She further ordered them “immediately to suspend and discontinue any investigation, or discharge, separation or other proceedings” under way. The act was passed in 1993.

If the government does not appeal, the question will be whether a single district court judge can unilaterally invalidate a long-standing policy of the United States military, enacted by Congress in 1993, and causing years of debate during much of the two wars in Iraq and Afghanistan.

“A federal judge always has the power to declare a law unconstitutional,” said Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law.

“The interesting question concerns a nationwide injunction. On the one hand, I think she is on strong ground in doing so. On the other hand, one district judge doesn’t have the authority to bind judges in other districts or circuits. They can decide for themselves. The key question is whether the Obama administration will appeal.”

There also is an effort under way in Congress to repeal the law. The House earlier this year voted to repeal the act, as did the Senate Armed Services Committee. But Republicans blocked action on the Senate floor.

Drew Hammill, a spokesman for House Speaker Nancy Pelosi, said she “welcomed” the order and “continues to believe, until the Senate can act on the repeal of this policy and send it to the president’s desk, the administration should place a moratorium on all dismissals under this policy.”