Judge Virginia Phillips, who ruled in favor of a worldwide ban of service member discharges under the military’s Don’t Ask Don’t Tell policy, has thus far rejected a Justice Department request for a stay of the injunction pending appeal.
The final ruling should come out of the Riverside, CA courtroom this morning. But based on yesterday’s hearing, we can expect a rejection of the stay. The judge said the government failed to show proof of “irreparable harm” to the military if the injunction goes forward.
In a sworn declaration submitted to the court, Clifford L. Stanley, undersecretary of defense for overall military readiness, cautioned that an abrupt transition would undercut the Pentagon’s survey of military commands around the world to determine how best to create a policy that allowed people who are openly homosexual to serve.
“The stakes are so high, and the potential harm so great, that caution is in order,” he said.
But Phillips on Monday rejected that argument. The judge said her ruling ordered an end to all discharge and separation proceedings under “don’t ask, don’t tell,” but did not prohibit the military from crafting a new policy or educating military personnel about serving side by side with openly gay service members.
Phillips also said that the government failed to produce any evidence during the two-week trial that showed allowing gays in the military would harm military readiness or troop cohesion.
“The arguments by the government are vague … and belied by the evidence produced at trial,” Phillips said Monday. She also chastised the federal government lawyers for not filing their objections when she was considering the injunction.
They actually pulled out the old “national security” card, too, but it doesn’t appear that Phillips was having any of it.
Paul Freeborne of the US Attorney’s office also made the case that Phillips overstepped her authority in invoking a worldwide ban rather than one limited to the plaintiffs or the jurisdiction of the court. But that was not the only argument made.
If the stay request fails as expected, we can expect the government to appeal that ruling up to the 9th Circuit, and ask for an emergency stay there. This is what the defendant-intervenors in the Prop 8 trial did.