Earlier tonight, California District Court Judge Virginia Phillips officially rejected the government’s request to stay her injunction against enforcing Don’t Ask, Don’t Tell, arguing that the defendants “have not shown” “a likelihood they will suffer irreparable harm.” Phillips had issued her injunction last week, after ruling that the policy violated the due process clause and the First Amendment in September.

“[T]he injunction requires Defendants to cease investigating and discharging servicemembers pursuant to the Act. It does not affect Defendants’ ability to revise their policies and regulations nor to develop training and education programs, the only activities specifically mentioned in the Stanley Declaration,” Phillips wrote, referring to a memo from Clifford Stanley, undersecretary of defense for personnel and readiness, who said the injunction would create a burden for the military. Phillips similarly dismissed a Rolling Stone interview with President Obama, which the government also submitted, calling it “hearsay.”

“The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights,” she wrote. “While Defendants’ interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.”

The Pentagon is complying by the orders of the injunction while it’s in effect and announced earlier today that it has issued new guidance instructing recruiters to accept gay and lesbian applicants. The Department of Justice is now expected to seek a stay on the injunction before the ninth circuit court of appeals.

In an effort to comply with Judge Virginia Phillips’ injunction against enforcing Don’t Ask, Don’t Tell, the Department of Defense is instructing recruiters to accept gay and lesbian applicants. Pentagon spokeswoman Cynthia Smith tells the AP that “top-level guidance has been issued to recruiting commands informing them that the military’s “don’t ask, don’t tell” rule has been suspended for now,” but recruiters “also have been told to inform potential recruits that the moratorium could be reversed at any point.”

The Atlantic’s Marc Ambinder has more:

One is that the guidance given to recruiters is based on the status of legal process, and that gay recruits are being told that if the ban on gays in the military is upheld, their status might be revoked in the future. Two: in the Navy, at least, recruits are being processed on “delayed entry” status, which places them on inactive reserve status for up to a year.

Three, each service branch is applying the guidance, which was offered by the Pentagon’s general counsel, differently.

Four, this does not mean that it is safe for gay soldiers to come out. Indeed, if they do, and a stay is enforced or the case is thrown out, they can be held responsible for their declarations during this intermediary period. Still — today is a point of demarcation.

Servicemembers Legal Defense Network (SLDN) is warning gay members against coming out, however, since “a higher court is likely to issue a hold on the injunction by Judge Phillips very soon.” The Department of Defense “is awaiting a ruling from Phillips on the government’s request to stay the injunction pending the government’s appeal of the case to the U.S. Court of Appeals for the Ninth Circuit. The hearing on the stay request, held Monday afternoon, ended with Phillips giving a tentative ruling against granting the stay.”

Responding to today’s announcement, Lt. Dan Choi — who was discharged under the policy in 2010 — tweeted that he will try to enlist at the Times Square recruiting station in New York City, telling the Advocate Magazine, “[a]s we say in the military, this is a target of opportunity. It’s an opportunity for me to serve in whatever capacity that I can. And I’m going to go try to do that.”

Last night, federal district Judge Virginia Phillips indicated that she’s unlikely to grant the federal government’s request to stay her injunction barring the Pentagon from enforcing Don’t Ask, Don’t Tell. As Metro Weekly’s Chris Geidner explained, “This is the worst of all worlds for the Department of Justice attorneys arguing for the stay, because Phillips has more or less said that she doesn’t plan on giving them the stay while at the same time not issuing a ruling that is capable of being appealed to the U.S. Court of Appeals for the Ninth Circuit.” “Until Phillips issues an official denial of the request for a stay, in other words, DOJ just has to sit and wait.” If the Ninth Circuit denies the stay request, the government is prepared to petition the Supreme Court.

But in court on Monday, Phillips appeared less than impressed with the government’s arguments:

“The request is untimely,” she said, noting that the government had several weeks to present evidence about the effects that a worldwide permanent injunction could have on the military. “Neither at trial, when the government declined to put on any evidence, nor during the time it was allowed in a briefing schedule, did the government put on substantive evidence as to the form of the injunction,” she said.

She criticized evidence the government had advanced. “The first exhibit is a Rolling Stone article,” she said. “I hardly need to say more than that.”

She also found fault with the government’s introduction of declaration by Clifford Stanley, undersecretary of defense for personnel and readiness, who said the injunction would create a burden for the military. She said the declaration was “too conclusory to be of much assistance in the defense to meet the legal burden in obtaining a stay.”

The big problem for DOJ is that the longer the government has to wait for a court to stay Phillips’ injunction, the weaker their argument becomes about the importance of DADT in maintaining military readiness and other national priorities. Defense Robert Gates has warned that ending the ban through the court would have “enormous consequences for our troops,” but the Pentagon has yet to identify any negative impact from its temporary suspension of the ban. The Palm Center has launched an entire website to track any potential consequences and has submitted a Freedom of Information Act request for all documentation related to the suspension of DADT.

For more on the uncertainly surrounding Don’t Ask, Don’t Tell, read yesterday’s Progress Report.