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U.S. Military Can’t Enforce ‘Don’t Ask, Don’t Tell’

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Oct. 12 (Bloomberg) -- The U.S. military was ordered to stop discharging gays and lesbians who reveal their sexual orientation as a federal judge put into effect a ruling that its “Don’t Ask, Don’t Tell” policy is unconstitutional.

U.S. District Judge Virginia A. Phillips in Riverside, California, today ordered the military to “immediately suspend and discontinue any investigation, or discharge, separation, or other proceeding” under the policy against anyone in its command.

Phillips ruled last month that the “Don’t Ask, Don’t Tell” policy was unconstitutional. Today, she rejected the government’s request to limit the earlier ruling only to members of the Log Cabin Republicans, the group promoting equal rights for gays and lesbians that sued the Defense Department to overturn the policy.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” Alexander Nicholson, executive director of Servicemembers United, a gay and lesbian troops organization, said in an e-mailed statement.

The U.S. Court of Appeals in San Francisco may delay enforcement of Phillips’s ruling during an appeal, according to the statement.

“We have just learned of this ruling,” Cynthia Smith, a Defense Department spokeswoman said in an e-mail. “We are now studying it and we will be in consultation with the Department of Justice.”

Tracy Schmaler, a Justice Department spokeswoman, didn’t immediately respond to an e-mail seeking comment.

Free Speech

Phillips ruled Sept. 9 that the “Don’t Ask, Don’t Tell’ policy violates constitutionally protected due process and free speech rights.

President Barack Obama pledged in his January 2010 State of the Union address to lift the prohibition on gays and lesbians serving openly in the military, and the Defense Department is conducting a review of how the ban would be ended.

The House of Representatives passed legislation on May 28 that would repeal the “Don’t Ask, Don’t Tell” policy issued by President Bill Clinton in 1993. The Senate on Sept. 21 failed to pass legislation that would repeal the ban.

Discharge Moratorium

“Until the Senate can act on the repeal of this policy and send it to the president’s desk, the administration should place a moratorium on all dismissals under this policy,” House Speaker Nancy Pelosi, a Democrat from San Francisco, said in an e-mailed statement.

Phillips today rejected a request by the government to not issue an injunction until it had time to review the ruling and request a delay in enforcing it.

“As the court previously noted, defendants cite no authority for the proposition that district courts should stay litigation concerning the constitutionality of federal laws for an indefinite period merely because the legislative and executive branches have expressed doubts concerning the continued wisdom of the challenged laws,” Phillips said.

The military discharged 259 men and 169 women last year under the law. As many as 66,000 gay men and women may be serving in the U.S. military, about 2.2 percent of all personnel, including 13,000 on active duty, according to a study by the Williams Institute of the University of California at Los Angeles School of Law.

The case is Log Cabin Republicans v. U.S., 04-08425, U.S. District Court, Central District of California (Riverside).

To contact the reporter on this story: Edvard Pettersson in Los Angeles at

To contact the editor responsible for this story: David E. Rovella at

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