Court keeps military ban on gays during appeal

LOS ANGELES Mon Nov 1, 2010 7:30pm EDT

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LOS ANGELES (Reuters) - A federal appeals court on Monday ordered the U.S. military's ban on openly gay troops to remain in place while the Obama administration challenges a lower-court opinion declaring the "don't ask, don't tell" law unconstitutional.

The 9th U.S. Circuit Court of Appeals effectively ruled that the ban should remain in effect for the duration of a landmark legal battle that briefly forced the U.S. military to welcome openly gay recruits for the first time, then shut them out again.

Monday's order extends a temporary stay the 9th Circuit issued on October 20 lifting an injunction imposed the week before by U.S. District Judge Virginia Phillips when she ordered a halt to further enforcement of the law.

Phillips ruled in September that "don't ask, don't tell" infringes on the constitutional free-speech and due-process rights of gay men and women in the armed forces, prompting the administration to appeal.

President Barack Obama insists he supports ending "don't ask, don't tell," as he promised to do during his 2008 campaign. But his administration argues that Congress rather than the courts should repeal the ban, once the military completes its plans for an orderly transition to a new policy.

The Pentagon has warned that an abrupt, court-ordered change to the 17-year-old law requiring gay men and lesbians in uniform to keep their sexual orientation private would hamper military readiness and cohesion.

ARGUMENT FOR MORE TIME CARRIES WEIGHT

Siding with the Pentagon in its 2-1 majority decision on Monday, the three-judge appellate panel concluded "that 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."

It could be months before the appeals court rules on the merits of the case and decides whether to uphold or reverse Phillips' underlying opinion.

Lawyers for the Log Cabin Republicans, the gay rights group suing the government over the ban, said they would consult with their clients to decide whether to petition the U.S. Supreme Court to overrule the 9th Circuit on the stay.

The group's lead attorney in the case, Dan Woods, has told Reuters it "would be very difficult to get the Supreme Court to set aside what this (appeals) court has issued."

Still, the back-and-forth legal action has fueled its own sense of disarray at recruitment offices.

For eight days during which the ban was removed, a number of gay veterans once forced out of the military sought to re-enlist, even as the Pentagon warned that openly homosexual service members risked future expulsion if "don't ask, don't tell" were reinstated.

The Pentagon also tightened its controls on dismissals of gay service members.

Log Cabin Republicans executive director R. Clark Cooper urged Obama on Monday to use his statutory "stop-loss" authority to halt further discharges under the ban.

In a separate case decided in September, a federal judge in Tacoma, Washington, ordered the reinstatement of a former U.S. Air Force Reserve flight nurse expelled from the military after revealing she is a lesbian.

The legal debate comes at an awkward time for Obama and his Democratic allies in Congress, who risk diminishing support from the gay community, a key constituency, as they fight to hold off a rout by Republicans in Tuesday's elections.

Republicans, many fiercely opposed to gays serving in the military, are seen gaining from any hot-button social issue that could galvanize their conservative base at the polls.

"Don't ask, don't tell" was introduced in 1993 by President Bill Clinton as a compromise between previous regulations that had long excluded gays from the armed forces and a proposal to open the military to gays and lesbians outright.

"Don't ask" prohibited commanders from asking service members or recruits about their sexual orientation, but subjected troops to expulsion if homosexual behavior on their part was revealed or volunteered.

The Log Cabin Republicans says at least 13,000 men and women have been expelled from the military since "don't ask, don't tell" went into effect.

(Editing by Doina Chiacu and Stacey Joyce)

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