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Legal scholars debate judge's ruling on 'don't ask, don't tell'

They are divided on whether the ruling lifting the ban on gay troops applies to all service members. The Justice Department is expected to appeal.

October 14, 2010|By David S. Cloud and David Savage, Tribune Washington Bureau

Reporting from Washington — Legal scholars on Wednesday questioned whether a federal judge in Riverside can prohibit the entire armed services from forcing out openly gay service members, and the Obama administration scrambled to decide how to respond to the sweeping ruling.

The Justice Department is expected to appeal Judge Virginia Phillips' order overturning "don't ask, don't tell" and halting all Defense Department proceedings aimed at discharging gay and lesbian personnel. Last month, government lawyers cited several legal opinions in a brief that warned the judge against issuing an order that went beyond the handful of plaintiffs who had sued in her court.

President Obama supports allowing gays to serve, as does Defense Secretary Robert M. Gates. But they have commissioned a study on how troops feel and on how to integrate gays and lesbians into the military.

Gates told reporters traveling with him to Brussels on Wednesday that Congress should decide the question, the Associated Press reported — and only after the Pentagon task force completed its study, scheduled for Dec. 1.

"I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training," Gates said. "It has enormous consequences for our troops."

If the administration appeals, most legal experts expect the U.S. 9th Circuit Court of Appeals in San Francisco or the Supreme Court to lift Phillips' order while legal proceedings continue.

Vikram Amar, a UC Davis law professor, agreed that the judge's authority extended only to the plaintiffs, not to the entire nation. "The 'don't ask, don't tell' case was not certified as a class action," Amar said. Most federal appellate courts have said that a judge cannot issue a ruling that goes well beyond the parties who sued.

Others disagreed.

USC law professor David Cruz said Phillips' ruling in favor of the Log Cabin Republicans, a gay rights group, determined that the policy was unconstitutional on its face. In such a suit, plaintiffs do not argue that the measure is unfair to them, but that it is unconstitutional for all.

Once a judge declares the entire policy unconstitutional, "she has the authority to issue a ruling binding all the defendants," Cruz said, which in this instance is the U.S. military.

White House spokesman Robert Gibbs told reporters Wednesday, "The president believes that ['don't ask, don't tell'] should end. We have to figure out an orderly way for it to end."

Gibbs referred to the Justice Department questions on whether the administration would appeal. The department had no comment. At a public appearance in the Rose Garden, Obama ignored a question shouted by a reporter about whether he would allow the judge's ruling to stand.

Obama said in January that he would work with Congress on repealing the law, but a Senate test vote failed last month. It remains unclear whether Democrats will bring up the measure in a lame-duck session scheduled after next month's election.

Even lawyers who favor repeal acknowledged that the ruling might not stand for long. The litigation on the law's constitutionality could go on for years, said Aaron Tax, legal director for Servicemembers Legal Defense Network, an organization that represents gay and lesbian military personnel.

"We're thrilled by her ruling, but we recognize that it was very broad," Tax said. "It's likely to be quickly taken up by the 9th Circuit Court of Appeals and it may well be reversed."

On Tuesday, Phillips ordered the Defense Department "to immediately suspend and discontinue any investigation, or discharge, separation or other proceeding that may have been commenced" under the 17-year-old policy, which originally was intended as a reform. "Don't ask, don't tell" allows gay service members to serve as long as they do not disclose their sexual orientation.

More than 13,000 people have been removed from the military under "don't ask, don't tell," and investigations of service members believed to be gay or lesbian have continued.

Pentagon officials said Wednesday they had not received any guidance on whether to continue with pending cases, although its lawyers were studying the issue.

One senior military official said that he had heard opposing views from two military lawyers — one arguing that Phillips' ruling applied only in the Central District of California and another contending that the opinion overturned the policy for the entire armed forces unless a higher court ruling supersedes it.

Because of that uncertainty, Tax said his organization was still advising service members not to disclose that they are gays or lesbians.

Although the Pentagon tracks and signs off on decisions to discharge service members under the policy, the process is decentralized, beginning at the unit level, with an investigation and a recommendation to a unit's commanding officer.

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