Judge Unlikely To Grant Stay On DADT Ruling

The Justice Department’s effort to suspend an order dismantling the military’s “don’t ask, don’t tell” policy appeared headed for a federal appeals court after the judge who issued the order indicated she is not inclined to grant the government’s request.

During an afternoon hearing Monday, U.S. District Court Judge Virginia Phillips said the government did not present a convincing case to suspend the landmark order she issued last week, which effectively ends the ban on gays in the military, according to reporters for the Associated Press and the Advocate magazine. Representatives for both publications attended the Monday session in Riverside, Calif.

Philips seemed skeptical of Justice Department arguments that her order – which instructs the Pentagon to stop all discharges of gays and lesbians, overturning a law Congress passed in 1993 – would cause a significant disruption in military operations, the reports said. The judge said the government’s case demanding a stay had “significant failings” – including offering as evidence a Rolling Stone interview in which President Barack Obama said the “don’t ask” policy had to be repealed in an orderly way, the Advocate reported.

“I hardly need to say more than that," Phillips said, according to the AP. "It's hearsay. It's not reliable."

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"If a Monday afternoon federal court hearing in Riverside, Calif., was any indication, a recent judicial ruling barring any enforcement of the "don't ask, don't tell" policy will remain in effect unless a higher court intervenes.

During the 25-minute hearing, U.S. district judge Virginia A. Phillips issued a tentative ruling denying the government’s request for a stay of the injunction against DADT, but she will issue a final ruling on the matter by Tuesday morning.

Phillips, who ruled DADT unconstitutional in September, wasted no time in rejecting the government's position that ending the policy immediately would be an undue burden on the military, calling the arguments "vague" and "insufficient."

Assistant U.S attorney Paul Freeborne asked the court for a five-day administrative stay so the government can pursue an appeal of Phillips's injunction with the U.S. court of appeals for the ninth circuit. He argued that a "precipitous implementation" of an injunction against the 17-year-old policy will have a significant negative impact on military readiness.

But Phillips said there were "significant failings" in the evidence submitted by the Justice Department after she issued the injunction last week. Though the government declined to enter any of the evidence it had submitted in fighting the Log Cabin Republicans' suit against "don't ask, don't tell" in court last July — instead relying solely on the legislative history of the statute — Justice Department attorneys submitted a declaration to the court last week from a top Pentagon personnel official who warned against any abrupt change in the policy.

http://www.advocate.com/News/Daily_News/2010/10/18/Judge_Phillips_Rejects_Government_DADT_Stay/