Government Files Emergency Appeal on ‘Don’t Ask’ Injunction

WASHINGTON — The Jus­tice Depart­ment today filed an emer­gency appeal on behalf of the Defense Depart­ment to halt a fed­er­al judge’s injunc­tion against the so-called “Don’t Ask, Don’t Tell” law.

The emer­gency motion filed in the U.S. Court of Appeals for the 9th Cir­cuit asks the court to stop, or “stay,” imme­di­ate­ly U.S. Dis­trict Judge Vir­ginia Phillips’ Oct. 12 indef­i­nite injunc­tion against the law that bans gays and les­bians from serv­ing open­ly in the mil­i­tary.

The injunc­tion, which took effect imme­di­ate­ly upon Phillips’ rul­ing, pre­cludes con­gres­sion­al action on the law and “risks caus­ing sig­nif­i­cant imme­di­ate harm to the mil­i­tary and its efforts to be pre­pared to imple­ment an order­ly repeal of the statute,” the motion says.

The motion notes that Pres­i­dent Barack Oba­ma, Defense Sec­re­tary Robert M. Gates, and Navy Adm. Mike Mullen, chair­man of the Joint Chiefs of Staff, sup­port repeal of the law. How­ev­er, it needs more delib­er­a­tion, plan­ning, and train­ing, they say. Gates set up a work­ing group ear­li­er this year chaired by Gen. Carter F. Ham, com­man­der of U.S. Army Europe, and DOD Gen­er­al Coun­sel Jeh C. John­son to deter­mine what changes the depart­ment would need to make if the law is repealed. The review pan­el is to report its find­ings Dec. 1. Defense Depart­ment offi­cials issued a state­ment today that says the depart­ment “will con­tin­ue to obey the law, and we will abide by the terms of the court’s injunc­tion unless and until the injunc­tion is stayed or vacat­ed.”

Phillips yes­ter­day denied the request for a stay of the injunc­tion, writ­ing that the government’s con­cern for the dis­rup­tion caused by inval­i­dat­ing the law is super­seded by her rul­ing that the law is uncon­sti­tu­tion­al. Phillips’ rul­ing also says the injunc­tion would not impede the department’s goals of amend­ing poli­cies and reg­u­la­tions and devel­op­ing edu­ca­tion and train­ing pro­grams.

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

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