"Don't Ask, Don't Tell" Must Stop Now, Federal Judge Rules

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The federal judge who ruled the Pentagon’s “don’t ask, don’t tell” policy unconstitutional last month ordered the U.S. military to stop kicking openly gay men and women out of uniform Tuesday.

Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment

U.S. District Court Judge Virginia Phillips said in her injunction.

The federal government has 60 days to appeal, but has not indicated what it will do. Whether or not ousters will continue in the interim was not immediately clear. “A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military’s operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe,” Justice Department attorneys vainly argued earlier in their objection to Phillips’ Sept. 9 ruling, filed in U.S. District Court for Central California.

The ruling is a big victory for gay-rights advocates, who were quick to cheer it. There is concern in some Pentagon quarters that a judge’s ruling to lift the ban could cause more problems than if the action were taken by the nation’s political leaders in Congress and the White House. While President Obama has sought to end the ban, the Senate refused to take such a step recently. Military officers — even those who support ending the ban — believe having the nation’s political leaders, and not an unelected jurist, would give its termination more legitimacy.

Traditionally, judges have given the military much slack in writing rules and regulations for its personnel, contending they lack the experience to do so. In her amended opinion accompanying her injunction, Philips said that while “judicial deference” to Congress is highest when it comes to the military, “deference does not mean abdication.”