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Injunction sought to ban defense agencies from enforcing 'don't ask, don't tell' policy

September 16, 2010 |  4:47 pm

A week after a federal judge in Riverside declared the U.S. government’s ban on gays serving openly in the military unconstitutional, attorneys for the Republican organization that filed the lawsuit asked the court to permanently and immediately ban defense agencies from enforcing the "don’t ask, don’t tell" policy.

The U.S. Department of Justice has seven days to respond to the proposed injunction. Agency officials could not be reached for comment Thursday.

On Sept. 9, U.S. District Judge Virginia A. Phillips ruled that the 17-year-old “don’t ask, don’t tell” policy violated the 1st Amendment and due process rights of gay and lesbian service members. The case was filed in 2004 by the Log Cabin Republicans, the GOP’s largest gay political organization.

In her opinion, Phillips said the evidence presented showed that the policy had a detrimental effect on the armed services, including leading to the dismissal of “critical” military personnel. She noted that the Pentagon also violated the policy when it saw fit, routinely delaying the discharge of service members suspected of violating the law until they completed their deployments in Iraq and Afghanistan.

Justice Department officials could appeal the ruling and any court-ordered injunction.

On Wednesday, U.S. Sens. Kirsten Gillibrand (D-N.Y.) and Mark Udall (D-Colo.) wrote a letter to U.S. Atty. Gen. Eric Holder urging him not to appeal the decision. They noted that President Obama, Defense Secretary Robert M. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, all have called for the law to be repealed.

The policy “harms military readiness, as well as the morale and the cohesiveness of our armed forces, at a time when our military’s resources are strained and unity is critically important," the senators wrote.

Log Cabin Republicans attorney Dan Woods, from the White & Case law firm in Los Angeles, said leaders of the organization have been invited to discuss the case with members of the Obama administration in the next few days.

Justice officials and other legal experts have questioned whether the federal judge has the legal authority to issue an injunction prohibiting the policy from being enforced worldwide throughout the military, as opposed to just her judicial district in California.

Woods, however, argued that past federal court rulings show that Phillips clearly possesses that authority.

Former President Clinton adopted the "don't ask, don't tell" policy in 1993 as a reform to the military's practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve.

More than 13,000 service members have been discharged under the policy, according to evidence presented at the trial by the Log Cabin Republicans.

The U.S. House of Representatives voted to repeal the policy last spring, contingent on the outcome of a Pentagon study to determine if it can adapt to the change without harming military readiness. The study is expected to be completed by December. The proposed repeal remains stalled in the U.S. Senate, however.

-- Phil Willon in Riverside