Brody's Notes... Judge Issues Permanent Injunction Against DADT

U. S. District Court Judge Virginia Phillips   Photo By Getty Images

By Brody Levesque (Washington DC) OCT 12 | U.S. District Court Judge Virginia A. Phillips in Federal Court in Riverside, California, today ordered the U. S. Defence Department to "immediately suspend and discontinue any investigation, or discharge, separation, or other proceeding" under the DADT policy against anyone in its command.

Judge Phillips had ruled DADT unconstitutional after a bench trial in July in the case of a lawsuit originally brought by the Log Cabin Republicans in 2004. Lead attorney for the plantiffs, Dan Woods, called the injunction ordered by Judge Phillips "historic" but he also noted that he fully expects the Justice Department to seek a stay of the decision with the Ninth Circuit Court of Appeals in San Francisco.

"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. Nicholson also warned to current servicemembers to not take steps to come out during this period.

In a statement after a briefing late this afternoon given to The Advocate's Senior White House correspondent, Kerry Eleveld;  White House Press Secretary, Robert Gibbs, acknowledged that he did not know whether the administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction.

"Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case, and the president will continue to work as hard as he can to change the law that he believes is fundamentally unfair," Gibbs said.

On Capitol Hill, Drew Hammill, Press Secretary for House Speaker Nancy Pelosi (D-CA), said:

"The Speaker from the outset has strongly opposed DADT, which the House has voted to repeal. The Speaker continues to believe, 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."

Full text of Judge Phillips' order of permanent injunction issued today:
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.