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Judge keeps injunction against 'don't ask, don't tell' in place

By the CNN Wire Staff
  • Judge says there's no injury to the government in keeping injunction
  • "The injury ... here is violation of the constitutional rights of servicemembers," she says
  • Servicemembers' legal group warns "the uncertainty has not gone away"
  • Plaintiffs say president is "standing in the way" of ending the policy

(CNN) -- A U.S. District Court judge in California has denied the Obama administration's request for an emergency stay of her injunction against enforcement of the military's ban on gay men and lesbians serving openly.

The government's next step is to appeal Judge Virginia Phillips' order to the Ninth Circuit Court of Appeals in San Francisco.

In rejecting the stay request, Phillips wrote that the administration had failed to show it would be "irrevocably harmed" by the ruling or that it would be likely to succeed on appeal.

"The injury to interested parties here is violation of the constitutional rights of servicemembers to due process and freedom of speech and to petition the government, rights which were vindicated during the course of the trial," she wrote.

She disputed the administration's contention that not issuing a stay would damage military unit cohesion and readiness.

"The evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights," she wrote. "The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights.

"While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights. The evidence Defendants submitted with this Application has not demonstrated otherwise."

There was no immediate response from the administration.

Phillips ruled in September that the "don't ask, don't tell" policy, which prevents gay men and lesbians from serving openly in the military, is unconstitutional and last week ordered the military to immediately stop enforcing it. The Justice Department filed a request Thursday for an emergency stay of the order while the ruling is appealed with Phillips, who indicated Monday she was unlikely to grant it.

"Judge Phillips is right to stand with servicemembers by rejecting President Obama's request to continue this discriminatory policy," said R. Clarke Cooper, executive director of Log Cabin Republicans, the plaintiffs in the case. "It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, Marines and Coast Guardsmen.

"As Commander in Chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security," Cooper said. "The president has said that 'Don't Ask, Don't Tell' will end on his watch, but is currently standing in the way of its demise."

President Barack Obama has said that he supports a congressional repeal of the policy rather than a judicial one. The Justice Department says that it defends all laws of Congress in court.

Earlier Tuesday, a Pentagon spokeswoman said that the Defense Department had notified recruiters that they could accept openly gay or lesbian recruits.

"By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which works with gay men and lesbians in the military against the policy. "The Department of Justice will immediately ask the 9th Circuit to stay the injunction.

"We're talking about the careers of patriots, people who are on the frontlines serving our country -- some of whom are highly decorated -- and the court needs to keep the injunction in place," Sarvis said.

Sarvis also urged gay and lesbian service members not to reveal their sexual orientation until a final judgment has been issued.

"Our service members need finality," Sarvis said. "Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington."