Judge tentatively upholds gays-in-military order

RIVERSIDE, California (Reuters) - A federal judge tentatively refused on Monday to let the Pentagon reinstate its ban on openly gay men and women in the U.S. military while the government appeals her decision declaring the "don't ask, don't tell" policy unconstitutional.

The Obama administration, insisting it supports ending the ban but urging the judge to allow more time for a political remedy rather than a court-imposed one, has said it would ask the 9th U.S. Circuit Court of Appeals to overturn her ruling.

During a hearing on the government's request to stay her injunction for the time being barring enforcement of the ban, U.S. District Judge Virginia Phillips said in court: "My tentative ruling is to deny the application for a stay."

She said the Obama administration's request was "untimely" and that its evidence in support of the need for a stay was "insufficient to meet its burden."

After hearing brief oral arguments from both sides, Phillips said she would take the matter under submission and issue a ruling by the end of the day or Tuesday morning.

Phillips ruled in September that the 17-year-old "don't ask, don't tell" law infringes on the constitutional free-speech and due-process rights of gay men and lesbians serving in the armed forces.

Over the administration's objections, she put that opinion into effect on October 11 with a blanket injunction requiring the military to stop enforcing the ban and drop pending investigations and discharges stemming from it.

The Pentagon said last Friday it was abiding by the court order but warned that gay service members who took advantage of the ruling to reveal their sexual orientation could still face expulsion later if the judge's ruling were reversed.

(Reporting by Dan Whitcomb; Editing by Eric Walsh)