Appeals court temporarily reinstates military's gay ban

McClatchy NewspapersOctober 20, 2010 

WASHINGTON — A federal appeals court in California temporarily reinstated "don't ask, don't tell" while it considers an Obama administration appeal of a lower court judge's ruling that the military's ban on openly gay service members is unconstitutional.

The decision marks the second time in the past week that federal courts have ruled on the legality of the 17-year-old policy, leaving the military in disarray over how to abide by the law. Last week, a district court judge issued an injunction calling for a worldwide end to the policy.

In the one-page finding issued Wednesday night, the 9th Circuit Court of Appeals, which is considering a government appeal, didn't explain why it issued the stay. Instead, the court simply wrote: "The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented."

The Obama administration sought a stay while the Defense Department completes a year-long study on how to implement a repeal.

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

The Pentagon had suspended cases against soldiers charged with openly being gay or lesbian after last weeks injunction. In addition, the military began welcoming openly gay and lesbian soldiers seeking to join.

Former soldiers who'd been discharged under the policy attempted to re-enlist this week, including former Army Lt. Dan Choi, an Iraq War veteran and one of the most outspoken opponents of the policy.

Although President Barack Obama has promised to end "don't ask, don't tell" during his term in office, he wants Congress, not the courts, to repeal the law. It's a delicate balance for the administration, less than two weeks before the midterm elections.

U.S. district court Judge Virginia Phillips issued the injunction against "don't ask, don't tell" after she found that the policy violated service members' First Amendment rights.

It's unclear when the appeals court will make a final ruling on the government's appeal.

The case was brought by Log Cabin Republicans, a gay GOP group.

"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," said Dan Woods, a lawyer who's representing the group in the case, Log Cabin Republicans vs United States of America.

"We didn't come this far to quit now, and we expect that once the Ninth 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."

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McClatchy's national security blog: Nukes & Spooks

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