In September, Judge Virginia Phillips struck down the military’s “don’t ask, don’t tell” law in a careful and detailed ruling. Now she has taken the far bigger step of actually stopping enforcement of the law . Phillips, a federal district court judge in San Diego, issued her whopper of an injunction for the same reason that she ruled against the government: DADT, she said, is hurting rather than helping the military.
When the law passed 17 years ago during the Clinton administration, the government argued that DADT was necessary for unit cohesion. But that claim has fallen apart. Even as the Obama Justice Department continued to defend the law in court-and asked Phillips not to issue today’s injunction because it might hurt operations in a time of war-President Obama himself said, “Don’t Ask, Don’t Tell doesn’t contribute to our national security.” Judge Phillips quoted him in her September ruling, along with Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, who has supported the repeal of the law. And she pointed out that Colin Powell, who once crucially defended DADT, now also thinks it should be reviewed.
As the law lost key parts of its top echelon of defenders, it also caused the discharge of service members in occupations identified as “critical” by the military, including medical professionals and Arabic, Korean, and Farsi linguists. And at the same time that DADT forced the discharge of more than 13,000 members of the military, including hundreds in those critical occupations, the shortage of troops has caused the military to permit enlistment of people who would have been denied admission at another time, because of their criminal records, their lack of education, or their lack of physical fitness.
The named plaintiffs in the suit illustrated the flaws of the law brilliantly: They had glittering records before they were discharged. Their stories include promotions and praise from their superiors. Getting into the U.S. Naval Academy was the “most significant moment” of his life, one of the plaintiffs said. As for unit cohesion, give the academics credit here: Judge Phillips cites research on military bunk architecture that shows that in the military, single rooms and single-stall showers have become the norm, even in combat zones in Afghanistan and Iraq.
The timing of Judge Phillips’ ruling, three weeks before the November election, will force Democrats and Republicans to talk about gay rights even if most of the candidates would rather not. Meanwhile, the Obama administration has 60 days to appeal. Should the Justice Department keep fighting for a policy the president has publically walked away from? There’s a case for letting the ruling lie . Whether it prevails inside the administration will be perhaps the best test we’ve had so far for how quickly public support is shifting in favor of gay rights. Are we there yet? This case has now the jumped the queue, ahead of same-sex marriage, for answering that question. Gay rights advocates should feel great about the record they’ve built. No matter what the fate of Judge Phillips’ injunction.