Judge Won’t Stay ‘Don’t|Ask Don’t Tell’ Injunction

(CN) - The federal judge who barred the military from enforcing its 17-year ban on openly gay troops has rejected the government's effort to halt her order pending appeal, citing the "public interest of safeguarding fundamental constitutional rights."

U.S. District Judge Virginia Phillips on Monday refused to stay her Oct. 12 order while the government works on repealing the Don't Ask Don't Tell Act through Congress.

The Clinton-era law requires the discharge of service members who are openly gay or lesbian.

In their application for a stay, Justice Department lawyers argued that Phillips' injunction "would undermine the credibility and validity of the entire process that the political branches have undertaken for the orderly repeal" of the policy.

Although President Obama supports overturning the Clinton-era law, he has said he wants it repealed through Congress, not the courts.

In rejecting the stay application, Judge Phillips said the government failed to demonstrate its likelihood of success and has not shown that it would suffer "irreparable injury" unless she blocks her order.

"Defendants merely conclude, without explanation, that 'confusion and uncertainty' will result if the injunction remains in place," Phillips wrote.

She echoed her earlier findings that the "Don't Ask, Don't Tell" policy "harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights."

"While defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the public interest of safeguarding fundamental constitutional rights."

Her latest ruling means military recruiters can accept gay applicants, at least for now.

Justice Department lawyers are expected to appeal the order to the U.S. Court of Appeals for the 9th Circuit.

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