Just a few weeks ago, it looked like “Don’t Ask, Don’t Tell” was here for the duration. Congress backed down from a half-hearted attempt to repeal it, and Republicans looked poised to take back the House (at a minimum), thus protecting their constituents from the specter of military gayification.
Guess we forgot about “activist judges,” though.
Federal district court judge Virginia Phillips ruled Tuesday afternoon that DADT was a First Amendment violation of the first order. The rule “infringes the fundamental rights of United States servicemembers and prospective servicemembers,” she said, entering an order to block the rule’s enforcement nationwide. That goes not only for future cases, but pending ones, too: Phillips enjoined the Defense Department to “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the ‘Don’t Ask, Don’t Tell’ Act…on or prior to the date of this Judgment.”
Translation: Don’t Ask, Don’t Tell, don’t let the door hit your ass on the way out.
For the record, Phillips was ruling on a motion filed not by Democrats, or the Obama administration, but by the Log Cabin Republicans, a conservative gay group that’s received its share of opprobrium both from fellow GOPers and fellow LGTBs.
John Avarosis of the Advocate points out that the immediacy of Phillips’ order will make it that much harder to revive DADT. And why would the federal government want to? As Avarosis says, this gives Barack Obama all the cover he needs to let the military’s anti-gay policy die a quick death. “The President now has the power—given to him by a federal judge—to do the right thing, to do what he promised, to side with the civil rights community,” he writes. “All he has to do is not appeal, and DADT is over.”
The full text of Judge Phillips’ order is below the jump:
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
This action was tried by Judge Virginia A. Phillips without a jury on July 13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on September 9, 2010 (Doc. 232), and an Amended & Final Memorandum Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010. For all the reasons set forth therein, the Court:
(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective
servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.
(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and
(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.