RIVERSIDE, Calif. – A federal judge is expected to rule Tuesday on 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 Monday she would review the arguments from Justice Department lawyers, but was leaning toward denying the request.
"My tentative ruling is to deny the application for a stay," Phillips said at the start of Monday's 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.
Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting and requiring the discharge of service members with critical skills and training.
At the time, she asked both sides to give her input about an injunction and, on Monday, called the government request "untimely." She said the Justice Department had plenty of opportunity to modify her injunction before she ordered it on Oct. 12.
Phillips also the government did not present evidence at the trial to show how her order would cause irreparable harm to troops.
Government attorney Paul Freeborne said the DOJ had no reason to present such evidence until her order came down.
He said her nationwide injunction was unrealistic, and will hurt military effectiveness because it does not allow enough time for the military to conduct its training and education to implement the new regulations.
"You're requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal," Freeborne told her.
A lawyer representing the Log Cabin Republicans, a gay rights group that filed the lawsuit challenging the ban in 2004, said the Justice Department has had six years to respond and did not.
"The government now wants to continue to deprive Americans of their constitutional rights, and the court should not do that," Woods told Phillips. His group says more than 13,500 service members have been fired under the Clinton administration-era policy.
Richard Socarides, a former Clinton White House adviser on gay rights, said he does not expect Phillips to grant the stay.
"She seems to have lost her patience with the government's position and I think that's reflected in her ruling up until now," Socarides said. "But they will probably go to the appellate court or Supreme Court and you'll see in a couple of days that this order has been stayed."
Under the 1993 law, the military cannot inquire into service members' sexual orientation and punish them for it as long as they keep it to themselves. President Barack Obama has said he wants the law repealed in Congress.
Defense Secretary Robert Gates, a Republican, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, the military's top uniformed officer, both say they support lifting the ban. But Gates and Mullen also have warned that they would prefer to move slowly.
Gates has ordered a sweeping study due Dec. 1 that includes a survey of troops and their families.
The president agreed to the Pentagon study but also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer.
That legislation passed the House but was blocked in the Senate by Republicans.
Gay rights activists worry that expected Republican gains in the midterm elections next month could make it even more difficult to overturn the policy in Congress.