Last month U.S district judge Virginia Phillips struck down "Don't Ask, Don't Tell" as unconstitutional. This week, she has issued an injunction to prevent the military from enforcing the law, which bans gays and lesbians from serving in the military. Will her injunction hold?
Judge Phillips had threatened to put a hold on DADT in her verdict last month; and after due consideration in the interim, she found nothing to change her intention. The problem, she wrote in her decision, is that, "the act known as 'Don't Ask, Don't Tell' infringes the fundamental rights of United States servicemembers and prospective service members and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution." She ordered an end to DADT enforcement, including a suspension of all investigations and discharges underway as a result of the law.
It is currently very unclear what will come of this. Judge Phillips stated that her injunction should become effective immediately, but Justice Department attorneys may appeal Phillips's injunction to the Ninth Circuit Court of Appeals on the grounds that a district judge does not have the authority to block DADT, even though Phillips herself heard and rejected those arguments. "This order will likely be appealed by the Justice Department and brought to the [ninth circuit] where [Phillips's] decision may well be reversed," Servicemembers Legal Defense Network legal director Aaron Tax said in a statement.
Even so, attorney Dan Woods, who argued the suit for the Log Cabin Republicans, said, "Unless and until the government appeals the case and gets a stay from another court, 'don't ask, don't tell' is no longer the law of the land." Yet he warns service-members against coming out, given the uncertainty surrounding the ruling. Even the Obama administration seems uncertain about the next steps. White House press secretary Robert Gibbs told The Advocate that he did not know whether the administration would appeal the ruling, though, he pointed out, "Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case, and the president will continue to work as hard as he can to change the law that he believes is fundamentally unfair."
And while there were likewise no direct promises from the legislative wing, House Speaker Nancy Pelosi welcomed the ruling in warm terms. “The Speaker from the outset has strongly opposed DADT, which the House has voted to repeal," said Pelosi's spokesperson Drew Hammill. "The Speaker 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.”
There's an easy solution here for the Obama Justice Department: don't ask; don't tell; just let the injunction stand.