DADT Update: Judge Likely To Deny Government On Gay Troops Order; Final Decision Any Moment
RIVERSIDE, Calif. — A federal judge said on Monday that she is learning toward denying a government request to delay her order halting the military from enforcing its ban on openly gay troops.
U.S. District Judge Virginia Phillips said she would review the arguments from Justice Department lawyers and issue a ruling as early as Monday, or by Tuesday.
"My tentative ruling is to deny the application for a stay," Phillips said at the start of the hearing.
Phillips said the government has not proven that her order would harm troops or in any way impede efforts to implement new regulations for the military to deal with openly gay service members.
If she rejects the request, Justice Department officials say the Obama administration would appeal. Experts say they will likely find friendlier venues in the U.S. Court of Appeals for the 9th Circuit in San Francisco and, ultimately, the U.S. Supreme Court.
"The farther the decision gets from the presentation of evidence in the trial court, the more likely it is that courts will assume the military must have some critically important interest at stake," said Diane Mazur, a law professor who opposes the policy.
The military has promised to abide by the injunction against the "don't ask, don't tell" policy as long as her order remained in place.
Government attorneys had asked Phillips to suspend her order while they appealed, saying that forcing an abrupt change of policy could damage troop morale as they fought two wars.
The judge declared the policy unconstitutional on Sept. 9, saying it violated due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.
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