Don’t Ask, Don’t Tell and 60 Days

October 14, 2010

Don’t Ask, Don’t Tell *may* just have been made a thing of the past.

On Tuesday, U.S. District Judge Virginia Phillips issued an immediate injunction against the U.S. government’s further enforcement of its Don’t Ask, Don’t Tell (DADT) policy. The government was additionally ordered to immediately cease all active discharge proceedings and investigations. The order can be found on Westlaw at 2010 WL 3960791.

Judge Phillips, at the end of a two week trial initiated by the Log Cabin Republicans and Service Members United, ruled the law to be unconstitutional as it violates service members’ free speech rights, due process rights and the right to petition the government for redress of grievances.

All eyes are now on the Obama administration. Should the administration appeal the ruling, DADT may continue on as a policy. If not, DADT may be done. According to Fox News:

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If it does, it can seek a temporary freeze, or stay, of her ruling. An appeal would go to the U.S. Court of Appeals for the 9th Circuit. Either side could then take it to the U.S. Supreme Court.

The administration has 60 days (and no legal obligation) to appeal Phillip’s ruling. If the November elections result in a Republican Congress, the likelihood of Congressional action to end DADT drops significantly, making Obama’s campaign promise to end DADT unreachable but through his refusal to appeal this ruling.

The clock is now ticking on the fate of this policy.
Submitted by
Seth T.
West Reference Attorney

UPDATE: According to Reuters, the Obama administration has decided to request the judge stay her ruling pending appeal.