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No delay of military gay ruling

A federal judge in California refused on Tuesday afternoon to put off, while the government appeals, her order barring enforcement of the Pentagon’s “don’t ask/don’t tell” policy against gays serving openly  in the military.  The ruling was contained in this six-page order.  The Obama Administration already had signaled it will promptly ask the Ninth Circuit Court for a postponement.

U.S. District Judge Virginia A. Phillips of Riverside said she found “unpersuasive” a top Pentagon official’s sworn statement arguing that immediate implementation of her ruling would seriously disrupt military readiness.  The evidence produced at the trial refutes those claims, she found.

The judge ruled one day after holding a hearing on the government request for delay.  She had telegraphed at that hearing her leaning against any postponement.

The judge was tartly critical of the government for having failed to produce, during the trial, the information it has now submitted on the negative effects it perceived if the current policy does not remain in effect while military officials make plans to implement it more gradually.  The government’s only defense of the policy during the trial was to offer the legislative history of Congress’s enactment of the policy in 1993.

“To the effect [the government officials] now argue that stopping discharge under the [Dont’ Ask, Don’t Tell] Act will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial.  [They] did not do so.  The evidence they belatedly present now does not meet their burden to obtain a stay.”

She also dismissed as “hearsay” the copy of an interview that President Obama gave to “Rolling Stone” magazine, submitted to her last week by the Justice Department. It did not have any guarantee that it was trustworthy, the judge said, so she “has not considered it.”

The worldwide injunction that she issued last week, Judge Phillips wrote, requires the government “to cease investigating and discharging servicemembers pursuant to the Act.  It does not affect [their] ability to revise their policies and regulations nor to develop training and education programs, the only activities specifically mentioned” in the sworn declaration of a Pentagon undersecretary for personnel, Clifford L. Stanley.

The judge’s order indicated that she examined all four of the requirements the government would have had to meet in order to obtain a stay of her injunction, and she ruled against the Pentagon on each.

On the question of whether gay servicemembers would suffer if the anti-gay policy were not blocked, the judge ruled that the harm she perceived  “strongly weighs” against any delay.  And, on the question of where the “public interest” lies, she expressly found that it was with “the preservation of fundamental constitution rights” of the gay military personnel.

The Administration, besides asking Judge Phillips to put her ruling on hold while the government pursued its planned appeal, also urged her at least to issue a temporary order that would hold up the policy long enough to allow the Administration to ask the Ninth Circuit for a stay.  The judge’s order did not mention that alternative request, so it presumably was denied along with the stay request itself.  The bottom line of her order read simply that she was denying the application for a stay.

The Administration’s next step, presumably, will be to ask the Ninth Circuit for what is called an administrative stay, to postpone her ruling until after the Circuit Court can act on a plea that it formally put her injunction on hold.  Because the government’s lawyers have contended that the delay issue is an urgent one, they presumably will move rapidly in the Circuit Court.  (The blog will monitor and report on that process.)

The government already has filed its appeal; the case is Log Cabin Republicans v. U.S., Circuit docket 10-56634.

Recommended Citation: Lyle Denniston, No delay of military gay ruling, SCOTUSblog (Oct. 19, 2010, 9:07 PM),