The Answer Is No
On Don’t Ask, Don’t Tell
Earlier this month, Judge Virginia Phillips of the US District Court for Central California ruled that the Don’t Ask Don’t Tell, of the US Military is unconstitutional. She ordered the military to abandon the policy and to stop any current investigations of service members that were started as the result of the policy. In essence, she said, lesbians and gays have a right to serve in the US military and should not be dismissed because of their sexual orientation.
The federal government urged her to stay her order pending the outcome of its appeal of her decision. Yesterday, October 18, she said, in court, that she would not stay her order. She is expected to put that decision in writing today.
Judge Phillips gave the following reasons for her decision:
- The government failed to provide sufficient proof that her injunction halting the policy would cause "irreparable harm" to the military or that the government's appeal would be successful.
- The government failed to produce any evidence during the two-week trial that showed allowing gays in the military would harm military readiness or troop cohesion.
Clifford L. Stanley, undersecretary of defense for overall military readiness, told the court that an abrupt transition would undercut the Pentagon's survey of military commands around the world to determine how best to create a policy that allowed people who are openly homosexual to serve.
Judge Phillips responded that nothing in her order prohibited the government from crafting a policy that is constitutional, and nothing in her order prohibited the government from creating a program to train heterosexual service members about working with lesbian and gay service members.
The federal government also argued that judge Phillips exceeded her authority by issuing an injunction worldwide, as opposed to limiting it to the plaintiffs in the case or within her Central California district. The Judge was not swayed by this argument.
It is reported that the Pentagon has, at least temporarily stopped enforcement of the Don’t Ask Don’t Tell Policy. However, it apparently plans to make an emergency appeal to the 9th US Circuit Court of Appeals urging it to stay Judge Phillips’ order pending the outcome of an appeal of her decision.
Boyce Hinman
California Communities United Institute
