A federal judge on Tuesday ruled that the Department of Defense must immediately halt its enforcement of the “Don't Ask, Don't Tell” policy regarding gay and lesbian troops.

California-based U.S. Ninth Circuit District Court Judge Virginia A. Phillips issued the injunction.

Her ruling stops the Department of Defense “from enforcing or applying the ‘Don’t Ask, Don’t Tell’ Act and implementing regulations, against any person under their jurisdiction or command.”

Phillips also ordered the Department 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.”

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

The case that won the injunction, Log Cabin Republicans vs. United States of America, was originally filed in 2004.

Last month Phillips had ruled after a two-week trial in the case that “Don’t Ask, Don’t Tell” was unconstitutional on First and Fifth Amendment grounds.

At that time Phillips also reportedly indicated her intent to issue an injunction barring further discharges in light of that finding.

Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans, celebrated the decision.

“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,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.

However, Nicholson added, “While this is certainly news to be celebrated, we would also advise caution in advance of a potential stay from the Ninth Circuit.

“If the appellate court wishes to put itself on the right side of history, however, it will allow this sound and long-over due decision to remain in effect,” Nicholson said.

 

A signed copy of the three-page injunction can be found at www.ServicemembersUnited.org/injunction.

The full text of the ruling follows.

United States District Court Central District of California

LOG CABIN REPUBLICANS, a nonprofit corporation,

Plaintiff,

v.

UNITED STATES OF AMERICA and ROBERT M. GATES,

SECRETARY OF DEFENSE, in his official capacity,

Defendants.

Case No. CV 04-08425-VAP (Ex)

JUDGMENT AND PERMANENT INJUNCTION

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.

IT IS SO ORDERED.

Dated: October 12, 2010

VIRGINIA A. PHILLIPS

United States District Judge

*Codified in statute at 10 U.S.C. § 654 and implemented by regulations comprising Department of Defense Directives 1332.14 (1993), 1332.30 (1997), and 1304.26 (1993), as modified by Department of Defense Instructions 1332.14 (2008) (incorporating March 29, 2010 changes) and 1332.30 (2008) (incorporating March 29, 2010 changes).

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