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Judge's 'don't ask, don't tell' order is put on hold

The U.S. 9th Circuit Court of Appeals temporarily stays the decision by Judge Virginia Phillips to ban enforcement of the policy that keeps gays from serving openly in the military.

October 20, 2010|By David G. Savage, Tribune Washington Bureau

Reporting from Washington — Acting on a request from the Obama administration, a federal appeals court in San Francisco on Wednesday lifted a judge's order that had halted enforcement of the military's "don't ask, don't tell" policy on gays, leaving the much-disputed law in legal limbo.

The three-judge panel said it was setting aside the judge's order temporarily to give it time to "consider fully the issues presented." It gave opponents of the law until Monday to file a motion arguing why the judge's order should stay in effect.

The emergency order from the U.S. 9th Circuit Court of Appeals in San Francisco came just a day after the Pentagon, in response to the judge's order, announced it would permit openly gay men and women to enlist in the armed forces.

Although Wednesday's order is a victory of sorts for the Justice Department, it resolves none of the broader questions over whether or when the "don't ask, don't tell" policy will end. Instead, it preserves the political predicament for the Obama administration and the practical problem for the Pentagon.

President Obama has said the ban on gays in the military is wrong and must be repealed. But he wants the law repealed by Congress. In September, Senate Republicans blocked a floor vote on a bill that would have repealed the policy. Still, Obama has said he has a duty as president to defend the laws on the books.

The mixed message from the White House has come at a particularly inopportune time. With the midterm election bearing down, the president is desperately trying to help Democrats hold on to congressional majorities by firing up the party's liberal base.

Gay and lesbian activists are well aware that the administration is at least partly to blame for preserving the anti-gay military policy, and many are angry about it. This comes as many party progressives are wondering what they got out of the Democratic leaders and president they helped elect.

On Wednesday, reaction from gay rights organizations varied. The Servicemembers Legal Defense Network said the order means the "don't ask" policy is back in effect.

"Gay and lesbian service members deserve better treatment than they are getting with this ruling," said Aubrey Sarvis, the group's executive director. "We now must look to the Senate next month in the lame-duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose."

Dan Woods, the Los Angeles lawyer for the Log Cabin Republicans, had a muted reaction to the appeals court order.

"While we are disappointed with the court's ruling granting a temporary administrative stay, we view the decision as nothing more than a minor setback," Woods said. "We didn't come this far to quit now, and we expect that once the 9th Circuit has received and considered full briefing on the government's application for a stay, it will deny that application, and the district court's injunction, which it entered after hearing all the evidence in the case, will remain in place until the appeal is finally decided."

Pentagon spokeswoman Cynthia O. Smith said, "For the reasons stated in the government's submission, we believe a stay is appropriate."

Six years ago, the Log Cabin Republicans filed suit in Riverside arguing that the anti-gay policy violated the constitutional rights of gay service members and hurt the military. In September, U.S. District Judge Virginia Phillips agreed and declared the law unconstitutional.

On Oct. 12, she went further and handed down an injunction that required the government to immediately suspend enforcement of the law. Her order is the subject of the current round of appeals.

On Wednesday, the Justice Department filed a 25-page motion with the court in San Francisco arguing that the judge, acting alone, had gone too far, too fast.

A "sweeping injunction against a duly enacted act of Congress" was wrong as a matter of law, the government's lawyers said. It is "at odds with basic principles of judicial restraint requiring courts to limit injunctive relief to the parties before the court, and is contrary to decisions of other courts, which have sustained the constitutionality of the statute."

Moreover, the judge's order has caused "confusion and uncertainty" at the Pentagon and among gays and lesbians in the ranks, the government said. If an appeals court later reverses the judge and affirms the constitutionality of the law, it "would create tremendous uncertainty about the status of service members who may reveal their sexual orientation in reliance" on the judge's order suspending the law, the government said.

The motion came before a panel that hears emergency requests. It consists of Judges Diarmuid O'Scannlain and Stephen Trott, both appointed by President Reagan, and William Fletcher, appointed by President Clinton.

The panel issued a two-sentence order granting the emergency motion to stay Phillip's order.

Regardless of how the temporary orders are handled, the appeals court, and ultimately the Supreme Court, will have to decide on the constitutionality of the policy, unless it is repealed by Congress.

david.savage@latimes.com

Christi Parsons and David Cloud in the Washington bureau contributed to this report.

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