Judge inclined to nix delay of gay troops order

Phillips says government did not present evidence at trial to show how order would cause harm to troops

Published October 18, 2010 11:29PM (EDT)

A federal judge said on Monday that she is inclined to deny a government request to delay her order that immediately stopped the military from enforcing its ban on openly gay service members.

U.S. District Judge Virginia Phillips said she would review the arguments from Justice Department lawyers and issue a ruling Monday.

If she rejects the request, the Justice Department could move to appeal at what experts say are likely to be more friendly venues: the U.S. Court of Appeals for the 9th Circuit in San Francisco and, ultimately, the U.S. Supreme Court.

"The further the decision gets from the presentation of evidence in the trial court, the more likely it is that courts will assume the military must have some critically important interest at stake," said Diane Mazur, a law professor who opposes the policy.

The military has promised to abide by the injunction against the "don't ask, don't tell" policy as long as her order remained in place.

Government attorneys had asked Phillips for the temporarily halt while they appealed, saying that forcing an abrupt change of policy could damage troop morale at a time of war.

Phillips issued her landmark ruling on Sept. 9, declaring the policy unconstitutional. She said the policy violated due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

At the time, she asked both sides to give her input about an injunction.

On Monday, Phillips called the government request "untimely," saying Justice Department lawyers had plenty of opportunity to modify her injunction before she ordered it last Tuesday.

Phillips also said the government did not present evidence at the trial to show how her order would cause irreparable harm to troops.

Justice Department attorney Paul Freeborne told her the government had no reason to respond until her order came down. He said her nationwide injunction was unrealistic.

"You're requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal," Freeborne told her.

Under the 1993 law, the military cannot inquire into service members' sexual orientation and punish them for it as long as they keep it to themselves. President Barack Obama has said he wants the law repealed in Congress.

The Log Cabin Republicans, the gay rights group, filed the lawsuit in 2004 to stop the ban's enforcement. The group says more than 13,500 service members have been fired under the Clinton administration-era policy.

Richard Socarides, a former Clinton White House adviser on gay rights, said he does not expect Phillips to grant the request.

"She seems to have lost her patience with the government's position and I think that's reflected in her ruling up until now," Socarides said. "But they will probably go to the appellate court or Supreme Court and you'll see in a couple of days that this order has been stayed."

By Julie Watson

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Don't Ask Don't Tell