Once again, the judicial system marches steps ahead of Congress when it comes to granting gay rights.

The New York Times reports that a California ferderal judge ruled yesterday that it is unconstitutional to ban openly gay men and lesbians from serving in the military.

The plaintiffs in the case, Log Cabin Republicans, argued their First and Fifth Amendment Rights were being violated under the military’s “Don’t Ask, Don’t Tell” policy. Judge Virginia Phillips agreed.

“The ‘don’t ask, don’t tell’ act infringes the fundamental rights of United States service members in many ways,” Phillips wrote in her 86-page opinion. “In order to justify the encroachment on these rights, defendants faced the burden at trial of showing the ‘don’t ask, don’t tell’ act was necessary to significantly further the government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”

This ruling does not immediately repeal the “Don’t Ask, Don’t Tell” policy. The plaintiffs must propose an injunction for the law by Sept. 16 and the defendents will have a week to make objections to the injunction. There’s a chance the decision can be sent to the Appeals Court.