October 20, 2010 / 12:41 AM / 9 years ago

Judge affirms order opening military to gays

LOS ANGELES (Reuters) - A federal judge formally refused on Tuesday to let the Pentagon reinstate its ban on openly gay men and women in the U.S. military while it appeals her decision declaring its “don’t ask, don’t tell” policy unconstitutional.

A day after tentatively siding against the Obama administration, U.S. District Judge Virginia Phillips issued a written decision denying a government request to lift her own injunction barring further Pentagon enforcement of the ban.

Although government concerns about military readiness and cohesion are important, “these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights,” she wrote in a six-page opinion.

President Barack Obama has insisted he stands by his 2008 campaign pledge to end “don’t ask, don’t tell,” but his administration had urged the judge to allow more time for a political remedy to the issue rather than a court-imposed one.

The Pentagon also has argued that an abrupt change in the 17-year-old policy, enacted into law under then-President Bill Clinton, would hamper the military.

But anticipating an unfavorable ruling on Tuesday, the Defense Department earlier in the day instructed its recruiters for the first time to start accepting applications from enlistees who acknowledge they are gay.

Nevertheless, the administration has served notice that it would take its case to the 9th U.S. Circuit Court of Appeals and seek to block Phillips’ order there if she denied a stay.

Phillips, who was appointed to the federal bench by Clinton, ruled in September that the policy he introduced infringes on the constitutional free-speech and due-process rights of gay men and lesbians in uniform.

She put that opinion into effect on October 12 with a blanket injunction requiring the military to stop enforcing the ban and drop pending investigations and discharges stemming from it.

“Don’t ask, don’t tell” was enacted as a compromise between previous regulations that had long excluded gays from the armed forces altogether and Clinton’s original promise to open the military to gays and lesbians outright.

The new law prohibited commanders from asking service members or recruits about their sexual orientation but subjected troops to expulsion if homosexual behavior on their part was revealed or volunteered.

In a separate case last month, a federal judge in Tacoma, Washington, ordered the reinstatement of a former U.S. Air Force Reserve flight nurse who was discharged from the military after revealing she is a lesbian.

The lawsuit challenging the policy was brought by the Log Cabin Republicans, a gay rights group, six years ago.

Clarke Cooper, executive director of Log Cabin Republicans, welcomed the decision.

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” he said in a statement. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.

Reporting by Steve Gorman; Editing by Dan Whitcomb and Peter Cooney

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