The federal judge who ruled the Pentagon’s “Don’t Ask, Don’t Tell” policy unconstitutional last month — and then ordered the military to stop enforcing it last week — gets a third bite of the apple today when she is slated to rule on the Pentagon’s request to halt her injunction until an appeal can be heard. The betting inside the Pentagon is that if Judge Virginia Phillips of California thought it was unjust and shouldn’t be enforced last week, she’s not likely to change her mind today.
There’s a ticking clock in the courtroom, as well as one set up by the University of California at Santa Barbara’s Palm Center, a think tank studying gender and military issues. The Palm Center clock is intended to keep track of the “enormous consequences” Defense Secretary Robert Gates warned would befall the nation if the push to lift “Don’t Ask, Don’t Tell” happened abruptly to comply with the judge’s order. So far, the site reports, the number of reported gay-related problems involving unit cohesion, discipline, resignations or privacy is zero.
Late last week, the Pentagon warned that speedily complying with the court’s decision could be dangerous. “In the event DADT is no longer in effect, an injunction with immediate and worldwide effect will have adverse effects on both military readiness and the Department’s ability to effect a smooth and lasting transition to a policy that accommodates the presence of openly gay and lesbian service members,” Clifford Stanley, the under secretary of defense for personnel, said in a court filing Thursday. “The stakes here are so high, and the potential harm so great, that caution is in order.” He said that a halt on enforcement on openly gay troops serving in the U.S. military could “irreparably harm our military and the national security of the United States.”
A conservative military-personnel expert concurs. “Judge Phillips apparently sees herself as supreme judicial commander of the U.S. military, having reached her short-sighted conclusion after eight days of one-sided testimony from gay activists who failed to prevail in the legislative branch,” argues Elaine Donnelly of the non-profit Center for Military Readiness. Like many in the military, she wants any decision to change the law to be made by elected officials, and not by appointed judges. “It is absurd to suggest that a rogue district judge knows more than elected members of Congress.”
Gay-rights advocates dismiss such concerns. ”The Pentagon is stating that it cannot do what it is currently successfully doing,” said Christopher Neff of the Palm Center. “Our service members already know how to treat gay and lesbian service members appropriately because they do so every day.”
It was the Log Cabin Republicans, a pro-gay GOP group, that filed and won the pending case overturning “Don’t Ask, Don’t Tell.” In a filing Friday encouraging Phillips to keep her injunction in place, the group said “the government’s continued defense of the case bespeaks hypocrisy at its highest levels [and] should reinforce, not deter, the Court from maintaining the injunction it correctly entered based on the evidence presented at trial, and thereby safeguarding the Constitutional rights of our service members.”
Phillips has slated today’s hearing on the government’s request for 2:30 p.m. this afternoon (West Coast time), 150 minutes after the government has said it plans to appeal her ruling to the 9th U.S. Circuit Court of Appeals.