Brushing aside Obama Administration arguments that a  federal judge could issue only a narrow, limited order against the Pentagon’s “don’t ask/don’t tell” policy against gays in the military services, U.S. District Judge Virginia A. Phillips on Tuesday issued a nationwide ban on any enforcement, ordering an immediate stop to any investigations of gays now going on and halting any discharges that were being planned.  In a 15-page bench memo. she explained her rejection of most of the government’s arguments against a sweeping order.  The text of her final order is here.

The judge, acting in the case of Log Cabin Republicans, v. U.S. and Gates (docket 04-8425), also refused an Administration request to postpone the effective date of her order to give officials more time to plan their reaction and to ask for a formal delay of the order while they pursue an appeal.  The judge said she had three times turned down pleas for delay, and concluded that no new arguments had been made this time for a postponement.  That left the government with the option of asking the Ninth Circuit Court to put the Phillips ruling on hold temporarily.

Judge Phillips, who held a trial in Riverside, CA, over the ban’s constitutionality, had ruled on Sept. 9 that “don’t ask/don’t tell” violates the free-speech and due process rights of homosexuals in the military services.  At that time, however, she asked the challengers and the Administration to propose orders to carry out the decision.

The challengers asked for a nationwide injunction that would forbid any further enforcement, but government lawyers urged the judge to strike down the law only as it applied to the Log Cabin organization and its own members.  The government’s argument included claims that a nationwide ban would bar it from defending the provision in other courts, and would in effect overturn federal appeals courts rulings upholding the ban.

The law needed to be barred everywhere, the judge responded, because it was a successful constitutional challenge to the law as written, not as it was applied in a given factual setting (that is, it was a “facial” challenge).  Because the law was invalid, the judge added, the remedy needed to be as broad as the violation.  She said there were no parts of the law that could be salvaged from a nationwide order against it.  “The unconstitutional nature of the Act permeates the text of the statute,” she wrote.

To the argument that such a broad ruling would keep the government from efforts to defend the ban in other courts, the judge said she agreed — that is, her order binds the government officials who were sued so it may not try to defend them in other federal District Courts.  If it wishes to mount further defenses of the policy, Phillips said, they can appeal her ruling to higher courts.

As to appeals courts rulings upholding the ban, the judge said that three of the four do not count any longer, because they predated the Supreme Court’s 2003 ruling in Lawrence v. Texas finding broader constitutional protection for the private sexual lives of gays and lesbians.  The fourth ruling came after that, she noted, but she simply refused to follow it, finding its reasoning unpersuasive.

Judge Phillips granted only one of the government’s objections to a sweeping order in the form proposed by the challengers.  Government lawyers said the proposed injunction was written so broadly that it would stop the government from enforcing any other valid laws against crimes or misconduct by service members who are gay.  The challengers said that was not their intent, and so the judge struck out the language that would have gone that far, limiting her order to forbid enforcement only of ‘don’t ask/don’t tell” provisions and regulations.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, Nationwide bar to gay ban, SCOTUSblog (Oct. 12, 2010, 5:46 PM),