Judge: No Stay in DADT Ruling

U.S. district judge Virginia A. Phillips has denied a request by the Justice Department to stay her ruling against any further enforcement of the “don’t ask, don’t tell” policy.

Phillips, who indicated during a Monday court hearing that she would reject the government’s attempt to keep the policy in place pending its appeal in the case Log Cabin Republicans v. United States of America, wrote in her Tuesday order that the Justice Department’s arguments in favor of a stay were “unpersuasive” and short on specifics of immediate harm.

“To the extent Defendants now argue that stopping discharge under [don’t ask, don’t tell] will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial,” Phillips wrote. “Defendants did not do so. The evidence they belatedly present now does not meet their burden to obtain a stay."

In the Monday hearing, assistant U.S. attorney Paul G. Freeborne had asked Phillips for a five-day stay of her injunction so that the government can pursue an appeal with the U.S. court of appeals for the ninth circuit. The Justice Department has not yet filed an appeal of Phillips’s stay, though attorneys involved in the lawsuit predicted that the ninth circuit would rule on the matter this week or early next week. 

News of Phillips’s ruling came as little surprise, and her injunction against “don’t ask, don’t tell” has quickly altered the military landscape. On Tuesday a Pentagon spokeswoman said the Defense Department has suspended enforcement of DADT and ordered military recruiters to accept applications from gays seeking to serve in the armed forces.

Several gay service members discharged under DADT, including a Log Cabin Republicans chapter vice president in San Diego, visited military recruiting offices Tuesday seeking to reenlist or to be reinstated. Advocacy groups continue to warn current gay service members against coming out, however, should a higher court overturn Judge Phillips’s order.

In a statement, Log Cabin Republicans executive director R. Clarke Cooper said of the ruling, “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen. With recruiters accepting gay and lesbian applicants and a week having passed without incident, it is clear that our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom.”

During the Monday hearing, Phillips said the injunction she ordered does not preclude the government from carrying on any training or education efforts for service members nor does it prevent completion of a Pentagon Working Group study on DADT repeal due in December. "The implementation of new regulations can and should go forward," Phillips said. "That’s not prohibited by the court's order."