A federal judge ordered the US military to stop enforcing its ban on openly gay troops immediately, bringing the 17-year “don’t ask, don’t tell” policy closer than it has ever been to being abolished.
Justice Department lawyers have 60 days to appeal against last night’s injunction but did not say what their next step would be.
President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court.
But US District Judge Virginia Phillips’ injunction leaves the administration with a choice: continue defending a law it opposes with an appeal, or do nothing, let the policy be overturned, and add an explosive issue to a mid-term election with Republicans poised to make major gains.
Department of Justice and Pentagon officials were reviewing the judge’s decision today and had no immediate comment.
“The whole thing has become a giant game of hot potato,” said Diane Mazur, a legal expert at the Palm Centre, a think-tank at the University of California at Santa Barbara that supports a repeal.
“There isn’t anyone who wants to be responsible, it seems, for actually ending this policy.
“The potato has been passed around so many times that I think the grown up in the room is going to be the federal courts.”
A federal judge in Tacoma, Washington, ruled in a different case last month that a decorated flight nurse discharged from the US Air Force for being gay should be given her job back.
Judge Phillips, based in Riverside, California, issued a landmark ruling on September 9, declaring the policy unconstitutional and asked both sides to give her input about an injunction.
The judge 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.
Gay rights groups hailed her latest move.
“For a single federal judge to tell the government to stop enforcing this policy worldwide, with no time to think about it or plan for it, is almost unprecedented,” said Richard Socarides, a former Clinton White House adviser on gay rights.
“This judge was sure. There was nothing in her mind that could justify this even for one more day, one more hour.”
Gay rights advocates, however, tempered their celebrations, warning service members to avoid revealing their sexuality for fear the injunction could be thrown out during an appeal and they would be left open to being discharged.
If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling.
An appeal would go to the US Court of Appeals for the 9th Circuit. Either side could then take it to the US Supreme Court.
The Pentagon did not immediately comment and a Justice Department spokeswoman said the government was reviewing the decision.
But a “don’t ask, don’t tell” supporter said Judge Phillips had overstepped her bounds.
“The judge ignored the evidence to impose her ill-informed and biased opinion on our military, endangering morale, health and security of our military at a time of war,” said Wendy Wright, president of Concerned Women for America, a public policy group.
Ms Wright said the judge should have let Congress continue to investigate the impact of the repeal.
Judge Phillips’ order would go into effect immediately, said Dan Woods, the lawyer who represented the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban’s enforcement.
The group says more than 13,500 service members have been sacked under the Clinton-era policy, which bans the military from asking about the sexual orientation of service members, but also bans those who are openly gay.
Under the 1993 policy, servicemen and women who acknowledge being gay or are discovered engaging in homosexual activity, including in their own homes off base, are subject to discharge.
Judge Phillips’ ruling also ordered the government to suspend and discontinue all pending discharge proceedings and investigations.