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Earlier this week in Washington, it looked the Senate it might vote to end the don't ask, don't tell policy, the law that keeps gays and lesbians from serving openly in the military. But the Senate effectively delayed action. Some senators argued it was better to wait until the Pentagon finishes its own review of that policy. As NPR's Rachel Martin reports, the focus now shifts from Capitol Hill to the courts.
RACHEL MARTIN: Actually, one court in Riverside, California, where the judge has a big decision to make.
Mr. DAN WOODS (Attorney, Log Cabin Republicans): If the judge signs the injunction that she's expected to do, and the Justice Department does not appeal, then the judge's decision is binding on the government and don't ask, don't tell is over.
MARTIN: Well, maybe. That was Dan Woods. He's the attorney for the Log Cabin Republicans, the group that filed suit, claiming that don't ask, don't tell is unconstitutional. Judge Virginia Phillips agreed, and said so, in a ruling earlier this month. Now that big decision - whether to sign a permanent injunction that would overturn the ban.
But there are a lot of questions about whether this one federal judge can really put an end to don't ask, don't tell. First of all, her jurisdiction. Woods, the attorney for the gay rights group, says if she signs the injunction he's asked for, it would affect U.S. troops anywhere in the world. But Adam Winkler, a constitutional law professor at UCLA, says not so fast.
Professor ADAM WINKLER (Constitutional Law, UCLA): She is a lower court judge that has authority under the Constitution to interpret the Constitution, but she doesnt have the authority to bind other districts or other circuits in the country.
MARTIN: So, that's the jurisdiction question. Next, would her decision stick? Winkler points out that if the Justice Department appeals her injunction, the case would go up to the Ninth Circuit Court of Appeals, a court that has already upheld the Don't Ask Don't Tell policy several times.
Mr. WINKLER: If she enters an injunction banning the military from enforcing its policy, that will be overturned in a New York minute.
MARTIN: Gay rights advocates are trying to stop the case from even getting to the appeals court. Groups like Human Rights Campaign and the Log Cabin Republicans have launched a public relations push. They're trying to pressure the Department of Justice not to appeal Judge Phillips' ruling and the injunction she's likely to sign.
Here's their logic: President Obama wants don't ask, don't tell repealed, so why should his administration's Justice Department take the other side in court?
Mr. WOODS: Theres nothing that requires the president, the administration or the Justice Department to appeal. Theres no law that says they must do that.
MARTIN: But would it be unusual if the government didnt appeal?
Mr. WOODS: I mean, yeah, it would be a little out of the ordinary but these are, you know, out of the ordinary circumstances. You know, the government wants to repeal this law. It says it needs to repeal this law. It says its the right thing to do - and still the government might appeal.
MARTIN: Adam Winkler of UCLA says it's standard protocol for the government to appeal a ruling that challenges one of its laws. And if it's up to an appeals court, he says there's a long history of courts deferring to the military consensus. But there is no military consensus on don't ask, don't tell.
Critics of the law include the nation's top military officer, Admiral Mike Mullen. But just this week, another hint of dissent in the ranks. General James Amos, the president's pick to head the Marine Corps, said repealing don't ask, don't tell would disrupt the force.
Rachel Martin, NPR News, Washington.
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