Originally published on Advocate.com October 18 2010 5:40 PM ET
If a Monday afternoon federal court hearing in Riverside, Calif., was any indication, a recent judicial ruling barring any enforcement of the "don't ask, don't tell" policy will remain in effect unless a higher court intervenes.
During the 25-minute hearing, U.S. district judge Virginia A. Phillips issued a tentative ruling denying the government’s request for a stay of the injunction against DADT, but she will issue a final ruling on the matter by Tuesday morning.
Phillips, who ruled DADT unconstitutional in September, wasted no time in rejecting the government's position that ending the policy immediately would be an undue burden on the military, calling the arguments "vague" and "insufficient."
Assistant U.S attorney Paul Freeborne asked the court for a five-day
administrative stay so the government can pursue an appeal of Phillips's injunction with the
U.S. court of appeals for the ninth circuit. He argued that a "precipitous implementation" of an injunction against the 17-year-old policy will have a significant negative impact on military readiness.
But Phillips said there were "significant failings" in the evidence submitted by the Justice Department after she issued the injunction last week. Though the government declined to enter any new evidence in fighting the Log Cabin Republicans' suit against "don't ask, don't tell" in court last July — instead relying solely on the legislative history of the statute — Justice Department attorneys submitted a declaration to the court last week from a top Pentagon personnel official who warned against any abrupt change in the policy.
"The military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas," wrote the official, Under Secretary of Defense for Personnel and Readiness Clifford Stanley. "The magnitude of repealing the DADT law and policy is demonstrated by the Department's ongoing efforts to study the implications of repealing DADT."
Phillips said the injunction does not preclude the government from carrying on any training or education efforts for service members, however, 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."
Dan Woods, lead attorney for the Log Cabin Republicans, argued that the sheer longevity of this lawsuit — originally filed in 2004 — gave the government ample time to prepare for repeal of DADT.
"During those six years, the government has deprived brave, patriotic Americans of their constitutional rights," Woods told the court. "The government’s own 'precipitous implementation' is a problem of their own making. ... [It] now wants to continue to deprive Americans of their constitutional rights. ... The court cannot and should not do that."