October 12, 2010 / 8:07 PM / 7 years ago

Judge orders military to stop gay service ban

<p>Protesters, in favor of repealing the U.S. military's "Dont Ask, Don't Tell" policy, line the motorcade route of U.S. President Barack Obama as he passes by en route to a Democratic Party Fundraiser for Senator Barbara Boxer in Los Angeles April 19, 2010. REUTERS/Jason Reed</p>

WASHINGTON (Reuters) - A U.S. judge on Tuesday ordered the Pentagon to stop banning openly gay men and women from serving in the military after ruling last month that the “don’t ask, don’t tell” policy was unconstitutional.

U.S. District Judge Virginia Phillips in California rejected the administration’s request to limit her ruling to only military personnel who are members of the Log Cabin Republicans, the organization that sued to overturn the policy.

Phillips said in a 15-page order that because she had ruled that the policy was unconstitutional, the only proper remedy was to grant the organization a broad injunction barring the U.S. military from enforcing its policy.

The group proved during the trial earlier this year that the policy “irreparably injures servicemembers by infringing their fundamental rights,” Phillips said in the ruling.

She granted a permanent injunction that barred the Pentagon from enforcing the policy against anyone under its jurisdiction and told the Defense Department to suspend or end any pending investigation, discharge or other proceedings under the policy.

The law had barred homosexual acts in the military but allowed gay men and lesbians to serve in the armed forces so long as they keep their sexual orientation private. Otherwise, they are to be expelled.

Phillips last month had ruled that it violated the First and Fifth Amendments to the Constitution and asked the two sides for comment on possible remedies, including a permanent injunction against the policy.

Defense Department spokeswoman Cynthia Smith said Pentagon officials were studying the ruling and will consult with the Justice Department, which had no immediate comment on the ruling.

The Obama administration has 60 days to appeal and could ask the U.S. Court of Appeals for the Ninth Circuit for a stay pending appeal.

GAY GROUP HAILS RULING

Christian Berle, acting executive director of the Log Cabin Republicans hailed the decision granting the injunction, which would apply to all members of the U.S. military globally.

”These soldiers, sailors, airmen and Marines sacrifice so much in defense of our nation and our Constitution,“ Berle said. ”It is imperative that their constitutional freedoms be protected as well.

“This decision is also a victory for all who support a strong national defense. No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination.”

The policy was introduced in 1993 by President Bill Clinton and enacted into law, overturning a previous policy of excluding gay men and women altogether based on a premise that homosexuality was incompatible with the military.

President Barack Obama had pledged to repeal the policy but has faced strong opposition from Republicans in the U.S. Congress. Lawmakers failed to attach to pending legislation a provision to repeal the policy.

The “don’t ask, don’t tell” injunction, combined with a separate decision by the Obama administration to challenge a ruling that found a federal ban on same-sex marriage to be unconstitutional, comes at a tough time for Obama ahead of the congressional elections.

The president and fellow Democrats are facing losing numerous congressional seats in the November election, particularly if there is waning support among gays who previously had backed him.

Defense Secretary Robert Gates imposed tougher rules of evidence and generally made it more difficult to discharge openly gay military personnel. Meanwhile, the Pentagon has surveyed service members on the issue.

The case in U.S. District Court, Central District of California, is Log Cabin Republicans V. United States of America, 04-08425.

Additional reporting by Dan Levine in San Francisco and David Alexander in Washington; Editing by Bill Trott

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