Gay activists press "Don't Ask" court challenge

Demonstrators listen to a speaker during a protest, urging the Senate not to go on vacation until it passes the National Defense Authorization Act, which includes the repeal of ''Don't Ask, Don't Tell,'' which prevents gay and lesbians from serving openly in the military, on Capital Hill in Washington December 10, 2010.

LOS ANGELES (Reuters) - Weeks after Congress voted to repeal the law banning gays from serving openly in the military, opponents of "Don't Ask, Don't Tell" returned to court on Monday seeking to press ahead with their lawsuit against the policy.

The Log Cabin Republicans, a gay rights group that won a landmark federal court decision last year declaring the ban unconstitutional, urged the 9th U.S. Circuit Court of Appeals to proceed with its review of the legal case despite the repeal.

In opposing the Obama administration's motion to delay further court action on the issue, the group noted that Pentagon officials had warned homosexual service members that "Don't Ask, Don't Tell" remains in effect until new rules to carry out the repeal are put in place.

That means gay men and lesbians in uniform who reveal their sexual orientation are still subject to investigation and discharge.

"Although a bill to repeal the "Don't Ask, Don't Tell" statute has been passed and signed by the president, this legislative 'repeal' is not yet effective," the plaintiffs wrote in their filing.

The Senate gave final congressional approval of a repeal bill on December 18, and President Barack Obama signed it into law the following week, fulfilling a campaign promise to end the 17-year-old policy.

The legislation gave the Pentagon an unspecified amount of time -- perhaps months -- to educate service members and prepare for the policy change, before it "certifies" the repeal. Meanwhile, Defense Secretary Robert Gates has said the old law would remain in force.

"They have said they would continue to enforce it," Dan Woods, the group's lead attorney, told Reuters. "They sent memos to members of the service saying, 'If you're gay, don't come out.'" Openly gay individuals also remain barred from enlisting in the service for the time being.

Contrary to the impression left by political fanfare surrounding repeal in December, "Don't Ask, Don't Tell has not been repealed and will likely remain the law of the land until the end of 2011," Woods said.

If the 9th Circuit adheres to an expedited schedule of legal proceedings and briefings set last year in the case, Woods said it was possible the court challenge might prevail before the Pentagon can put new regulations into effect.

Moreover, he said continuing court action is necessary in light of moves threatened by Republican lawmakers to "repeal the repeal" of the gay ban.

Three months before Congress passed the repeal law, a federal judge in California handed gay activists a major victory by ruling that "Don't Ask, Don't Tell" infringes on the constitutional free-speech and due-process rights of homosexuals in the armed forces.

U.S. District Judge Virginia Phillips put her decision into effect in October by ordering a halt to further enforcement of the ban, briefly forcing the military to welcome openly gay recruits for the first time.

But the 9th Circuit subsequently stayed her injunction, ruling that "Don't Ask, Don't Tell" should remain in place pending the outcome of an appeal of the case.

The administration has argued that Congress, rather than the courts, should repeal the ban, once the military completes its plans for an orderly transition to a new policy.

More than 13,000 men and women have been expelled from the military since "Don't Ask, Don't Tell," was instituted during the Clinton administration.

(Editing by Peter Bohan)