A gay rights group will ask a federal judge Thursday to order the Pentagon to stop enforcing "don't ask, don't tell," the law barring gays from serving openly in the military.
The group — the Log Cabin Republicans — already won a big victory last week in the same case. U.S. District Judge Virginia Phillips said the law violates the First and Fifth Amendments of the Constitution. Now, attorney Dan Woods, who represents the gay-rights group, is looking for a more practical ruling.
"We want her to block any further enforcement or application of don't ask, don't tell wherever we have military operations — not just in California, not just in this country but wherever we have military bases anywhere in the world," he said.
A Pentagon official said government lawyers will likely object to a court injunction. There has been no word from the Justice Department.
Phillips won't rule on a possible injunction for at least a week, but she has already concluded that don't ask, don't tell violates the rights of gays and lesbians and harms military readiness. That's because it hurts recruiting and leads to the discharge of troops with critical skills. In the past 17 years, the law has led to the dismissal of more than 13,000 service members.
Some gay-rights leaders worry that the judge won't be able to stop the Pentagon from kicking out even more gays and lesbians — especially if government legal appeals stall any injunction.
"The case may be tied up in litigation for several more years," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a nonpartisan group that offers free legal services to those affected by the law.
Sarvis said the judge's action may be more important as a spur to Congress.
"In terms of the political significance, I think it should serve, her decision, as a catalyst for the Senate to act," he said.
The Senate is scheduled to take up don't ask, don't tell next week. The House already has voted to repeal it. It's not clear there are enough votes in the Senate to change the law.
Ultimately, however, it's up to Congress to do away with the policy — not the president, and not a lone federal court judge.
"There are members of Congress on both sides of the aisle that were confused as to why does it have to go through Congress," said Clarke Cooper of the Log Cabin Republicans. "Well it does because it was ... born in Congress in 1993; it was born in the Defense Authorization Bill.
"This is not like Harry Truman integrating the forces in 1948; this is not an executive decision."
Point Of Injunction
But Cooper says the federal court action in California definitely helps, especially because there's no guarantee that Congress will repeal the law.
"We're seeking to stop discharges, to stop the enforcement of don't ask, don't tell," he said.
In other words, even if the law were still on the books, the Pentagon would be unable to kick gays out of the military. Government lawyers argued before Judge Phillips, however, that she lacks authority beyond California.
Dan Woods, the lawyer for the Log Cabin Republicans, recalled her reaction: "She looked at government counsel and said, 'You cannot be serious,' or words to that effect."
So the big question now appears to be how sweeping an injunction by Phillips would be.