NBC News and news services
updated 10/12/2010 5:35:32 PM ET 2010-10-12T21:35:32

A federal judge Tuesday ordered the government to stop banning openly gay men and women from serving in the military under the "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 17-year-old policy permanently stopped.

The decision was cheered by gay rights organizations that credited her with getting accomplished what President Barack Obama and Washington politics could not.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans.

He was the sole named veteran plaintiff in the case along with the Log Cabin Republicans, a gay rights organization that filed the lawsuit in 2004 to stop the ban's enforcement.

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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.

A Perntagon official suggested the military may in fact halt all attempts to enforce the policy for the forseeable future. The official told NBC News: "It's important to point out that today's federal court order comes less than two months (Dec. 1) before the Pentagon is to provide Secretary of Defense Robert Gates with a plan on how, not if, but how to implement the repeal of 'Dont Ask Dont Tell' in the military."

Pentagon officials could not provide the number of DADT cases already pending.

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"Don't ask, don't tell" 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.

Legal experts say government attorneys are not likely to let the ruling stand 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.

Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which 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.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Phillips declared the law unconstitutional after listening to the testimony of discharged service members during a two-week nonjury trial this summer in federal court in Riverside.

She said the Log Cabin Republicans "established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights." She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

Gay rights advocates have worried they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill last 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.

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 military who are fighting and dying for our country," said Dan Woods, an attorney for the Log Cabin group.

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 openly gay. 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.

The Associated Press and NBC News contributed to this story.

Video: A fatal blow for Don't Ask Don't Tell?

  1. Closed captioning of: A fatal blow for Don't Ask Don't Tell?

    >>> late news today in this country. there's been a major defeat for the military's "don't ask don't tell" policy. a federal judge in california has blocked enforcement of the law nationwide, ordering the federal government to stop discharging gay and lesbian members of the services so, is this the end of this policy? our justice correspondent, pete williams , has more in our washington newsroom. pete, good evening.

    >> reporter: brian, this stops the policy in its tracks because the judge ordered its enforcement block not just in california , where this lawsuit was filed, but throughout the entire country. this is the same judge who just, a month ago, ruled the policy is unconstitutional. interfering with the private lives of service members, at the same sometime the judge said it does nothing to help the mission of the armed forces . in her ruling today, judge virginia phillips of california , said the policy's rules quote, actually serve to impede military readiness and unit cohesion rather than further these goals. the judge today ordered the military to immediately suspend any investigations of service members for violating the policy and stop any proceedings now under way to throw them out of the military. so, this puts the obama administration in a bind. the president has urged congress to do away with "don't ask don't tell." now his justice department will have to decide whether to keep the policy alive by appealing today's ruling. but tonight, a pentagon official tells my colleague that as a practical matter the military may simply give up on any further attempts to enforce "don't ask don't tell" brian.

    >> pete, thanks.

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