A federal judge on Tuesday denied a government request to delay her order to halt discharges under “Don’t Ask, Don’t Tell,” and the Pentagon took the unprecedented steps to begin allowing openly gay recruits to enlist, or re-enlist, in the U.S. Armed Forces.
In her formal ruling late Tuesday, U.S. District Judge Virginia Phillips said the government failed to meet its burden to obtain a stay, and faulted Justice Department attorneys for waiting until the last minute to present arguments about “difficulties” her injunction would create by effectively repealing the 17-year-old ban on openly gay service members.
“Defendants argue invalidation of a statute ‘irreparably injures the Government and itself constitutes sufficient grounds for a stay.’
“Defendants have not shown, however, a likelihood they will suffer irreparable harm. As noted above, the injunction requires Defendants to cease investigating and discharging service members pursuant to the Act. … Furthermore, Defendants merely conclude, without explanation, that ‘confusion and uncertainty’ will result if the injunction remains in place. Thus, Defendants have failed to establish they are likely to suffer irreparable injury if a stay is not granted.”
The Defense Department, anticipating the unfavorable ruling, and had already instructed its recruiters for the first time to start accepting applications from enlistees who acknowledge they are gay.
Pentagon spokeswoman Cynthia Smith said Tuesday recruiters had been given top-level guidance to accept applicants who say they are gay, but were also instructed to caution recruits that the policy is not final and could be reversed at any time if the ruling is eventually appealed or if a higher court grants a stay.
Dan Choi, a gay rights activist and Iraq War veteran who was booted from the New York Army National Guard after he came out, went to a military recruitment center in Times Square on Tuesday to begin the process to re-enlist.
Elaine Donnelly, president of the Center for Military Readiness, said the Pentagon was making “a big mistake” in accepting openly gay recruits. The military should have allowed court appeals to resolve the issue before acting, she said.
There’s no immediate comment from the Justice Department, but government lawyers are expected to move quickly to seek a stay from the U.S. Court of Appeals for the Ninth Circuit.
On Sept. 9, Phillips ruled that the “Don’t Ask, Don’t Tell” policy implemented under President Clinton in 1993 was unconstitutional, as it infringed on the constitutional rights of free speech and due process.
On Oct. 12, she issued a worldwide injunction ordering the U.S. military to cease enforcement of the ban.