Winkler, a supporter of gay rights, notes, "Permanent injunctions of this sort are unusual in cases of this magnitude and novelty, which run contrary to the established precedent and disrupt, for better or worse, settled expectations. In such circumstances, courts usually stay their rulings to enable the appellate courts to consider the controversy. That's what happened in the recent case involving California's ban on same-sex marriage."
Yesterday's permanent injunction faces a tough road. Ending the policy on gays in the military will have broad and far-reaching effects, stretching across many continents and affecting thousands of personnel decisions. If the appeals court judges have any uncertainty about the constitutional question here - and given the numerous precedents going the other way, how could they not? - they'll want to preserve the status quo until they can hear arguments and see briefing in the case. To do that, however, they'll have to block the injunction from taking effect. If they don't, expect the conservative Supreme Court to do it for them.
In September, one federal judge told me that he feared that if Judge Phillips entered a permanent injunction, the appeals court would see her decision as an effort to advance a cause rather than a dispassionate conclusion based on appropriate judicial reasoning.
If that's correct, then yesterday's injunction shouldn't be cause for celebration among proponents of gay rights, of which I am one. Judge Phillips's boldness might increase the chances that her ruling invalidating "don't ask, don't tell" will ultimately be overturned.
In early September, Judge Phillips ruled that the military's ban on gays serving openly in the military violates the Constitution's First and Fifth Amendments. Judge Phillips wrote in Log Cabin Republicans v. U.S., "The don't ask, don't tell policy infringes on the fundamental rights to the United States service members in many ways. In order to justify the encroachment of these rights, defendants faced the burden at trial of showing the don't ask, don't tell act was necessary to further the government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden."
Following her decision, Phillips asked the parties to submit briefs on the appropriate remedy. In her Oct. 12 decision, the judge sided with the Log Cabin Republicans' arguments to issue a permanent injunction against the military's policy. "As Plaintiff correctly points out," Phillips wrote, "it challenged the Act on its face, not as applied to it or its members. Therefore, its entitlement to relief is not constrained as Defendants suggest, and the Court is not limited to granting a remedy that would affect only Plaintiff and its members."
As noted by Professor Winkler, administrations generally have a duty to defend laws passed by Congress, even ones with which they disagree. White House Press Secretary Robert Gibbs said yesterday that the Department of Justice was reviewing Phillips' decision, but noted President Obama's opposition to Don't Ask, Don't Tell, saying the president would "continue to work as hard as he can to change the law that he believes is fundamentally unfair."
Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has stated his belief that the policy should be repealed, but that it should be done by Congress. In late September, Mullen said that he has "struggled greatly with the fact that we asked people in an institution that values integrity, which is who we are, that we would ask individuals to show up every day and basically lie."
For more on the history of Don't Ask, Don't Tell and efforts to repeal it, see video of an ACS panel discussion here.