RIVERSIDE, Calif. — A federal judge who declared the military's "don't ask, don't tell" policy banning gays unconstitutional issued a tentative ruling Monday rejecting the federal government's request to stay her decision while the case is appealed.
U.S. District Judge Virginia Phillips said 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. Phillips plans to issue her final decision today.
Paul Freeborne of the U.S. Attorney's Office argued that the injunction immediately halting enforcement of the policy, which bans gays and lesbians from serving in the military openly, jeopardized national security.
He urged Phillips, who issued the injunction last week, to set aside her decision while the government appealed the ruling and injunction to the 9th U.S. Circuit Court of Appeals.
In a sworn declaration submitted to the court, Clifford Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would undercut the Pentagon's work surveying military commands to determine how best to create a new policy that allows people who are openly homosexual to serve.
"The stakes are so high, and the potential harm so great, that caution is in order," he said.
But Phillips rejected that argument. The judge said her ruling ordered an end to all discharge and separation proceedings under "don't ask, don't tell," but did not prohibit the military from crafting a new policy or educating military personnel about serving side by side with openly gay service members.
The challenge to the "don't ask, don't tell" policy was filed in 2004 by the Log Cabin Republicans, the largest gay GOP political organization. It was the first successful broad-based constitutional challenge to the policy since Congress enacted it in 1993.