Appeals court gives ‘don’t ask, don’t tell’ more time

Extends freeze on judge’s ban

SAN FRANCISCO | A federal appeals court on Monday indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Reagan and one appointed by President Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia A. Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “We believe that prudence mandates restraint until the final judgment is entered.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Judge Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred for the panel to have heard oral arguments before granting the stay. Judge Fletcher said he would have prevented “don’t ask, don’t tell” from being applied to discharge any existing service members while the case was on appeal.

More than 14,000 men and women have been forced to leave the military since “don’t ask, don’t tell” took effect in 1994.

Monday’s ruling heightens pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in. President Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts.

“Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame-duck session to end this confusion and cause the finality that is needed,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “We continue to warn service members that it is unsafe to come out as long as this law remains on the books.”

The court ordered the government to submit a brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans, a gay rights group that sued to overturn “don’t ask, don’t tell” in Judge Phillips’ court, until Feb. 22 to reply.

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