WASHINGTON — A panel of 9th U.S. Circuit Court of Appeals on Monday blocked a U.S. district judge from demanding that the military enforce her order against the Pentagon's 'don't ask, don't tell' policy that bars gays and lesbians from serving openly in the military.
The immediate effect of the decision is to leave in place indefinitely a congressional ban that U.S. District Judge Virginia Phillips had found in September was unconstitutional because it infringed on the First Amendment rights of gay and lesbian soldiers, sailors and Marines. In October, she ordered the Pentagon to stop enforcing the ban, a ruling that briefly ended 'don't ask, don't tell,' the repeal of which has foundered in Congress, despite pledges by President Barack Obama to end it.
In its ruling, the panel said it had found "convincing" the government's arguments that suddenly ending the prohibition on gays and lesbians serving openly would have a deleterious effect on the military. "The public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay," the court said.
The panel also questioned whether Phillips' opinion would be upheld in the end.
"The district court's analysis and conclusions are arguably at odds with the decisions of at least four other circuit courts of appeals: the first, second, fourth and eighth," the panel said. The panel said the 9th Circuit was obligated by precedent not to interfere with the decisions of a "sister circuit" until it had undetaken a full hearing on the merits of the case.
It was unknown when the court would hear the government's appeal of Phillips' ruling.
Dan Woods, the lawyer representing the group that brought the lawsuit, called the decision "a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied.”
He said he would discuss with his client, Log Cabin Republicans, a group of gay Republicans, whether to appeal the court's ruling to the U.S. Supreme Court.
There was no immediate reaction from the Pentagon or the White House. Obama has pledged to end 'don't ask, don't tell' by persuading Congress to repeal the 17-year-old law that established it, but that effort came to abrupt stop in September when the Senate refused to take up a Defense appropriations bill that included a repeal amendment.
Gay activists had seen Judge Phillips' ruling as a way to get around Congress's reluctance to repealing the law. Obama administration officials said, however, that they had no choice but to appeal the order under a tradition that the Justice Department defends laws Congress has passed.
One of the three judges on the panel, William Fletcher, dissented in part from the decision, saying he also would have barred the Pentagon from dismissing from the military anyone accused of homosexuality while the appeal is decided. But he said that while he would have preferred to have heard oral arguments on the stay before deciding to grant it, he agreed with his fellow judges on the other aspects of their decision.
Last month, with Phillips' order in effect for eight days, the Pentagon urged service members not to say whether they are gay. The Defense Department has refused to say how many members or interested openly gay and lesbian candidates came forward. About 13,500 service members have been expelled since the 'don't ask, don't tell' went into effect in 1993.