MSNBCRIVERSIDE, Calif. - A federal judge Tuesday ordered the government to immediately stop discharges of gay service members under the military's "don't ask, don't tell" policy.
U.S. District Judge Virginia Phillips found the policy unconstitutional in September. On Tuesday, she rejected an Obama administration request to delay an injunction and ordered enforcement of the policy permanently stopped.
The Justice Department has 60 days to appeal. Legal experts say the government is under no legal obligation to do so and they could let Phillips' ruling stand.
The federal government is reviewing the ruling and has no immediate comment, said Tracy Schmaler, spokesman for the Justice Department.
Phillips declared the law unconstitutional on Sept. 9 after a two-week nonjury trial and said she would issue a nationwide injunction. But she asked first for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.
The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.
"The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the miltiary for fighting and dying for our country," said Dan Woods, an attorney for the Log Cabin group.
Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue - not her court.
Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.
She said the law violates the free-speech and due process rights of service members after listening to the testimonies of military officers who have been discharged under the policy.
Legal experts say the Obama administration could choose to not appeal her ruling to end the ban - but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.
"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here,' " said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.
Gay rights advocates say they worry they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill earlier this month because of a "don't ask, don't tell" repeal provision.
If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult - if not impossible - next year.
Woods said the administration should be seizing the opportunity to let a judge do what politics has been unable to do.
The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are gay from serving openly. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.
So for our American members, what's the likelyhood of this being upheld or shot down?
is all we can do to them.
, I don't see any problems if all serving gays came out of the weapons locker.