U.S. News

Judge asked to stay ruling on military gay ban

WASHINGTON (Reuters) - The Obama administration on Thursday asked a judge to allow the Pentagon to keep its ban against openly gay men and women in the military while it appeals her decision that ruled the “don’t ask, don’t tell” policy was unconstitutional.

Lieutenant Dan Choi, who was dismissed from the U.S. Army for admitting he was gay, speaks during a rally outside the Beverly Hilton hotel, where President Barack Obama was attending a Democratic party fundraiser, in Beverly Hills, California May 27, 2009. REUTERS/Mario Anzuoni

President Barack Obama, Defense Secretary Robert Gates and military leaders have backed ending the policy, but have urged that it be done by the U.S. Congress and military so that there is no disruption to military operations, morale or recruiting.

At a town hall meeting with young voters, a woman pressed Obama on why he wasn’t ending the policy immediately.

“This is not a situation where with a stroke of a pen I can end the policy,” he said and noted that he cannot ignore laws on the books. “This policy will end and it will end on my watch.”

The policy was introduced in 1993 by President Bill Clinton and enacted into law, overturning a previous policy of excluding gay men and women altogether based on a premise that homosexuality was incompatible with the military.

Judge Virginia Phillips in California on Tuesday said the policy violated the U.S. Constitution and ordered the military to stop enforcing it and drop pending investigations or discharges.

That sent the White House, Justice Department and Pentagon scrambling to seek the stay and appeal the ruling while it works on a parallel track to repeal the policy through Congress and set up new policies to allow openly gay people to serve.

The Justice Department filed the stay request and simultaneously appealed her ruling to the U.S. Court of Appeals for the Ninth Circuit. The government also asked for a temporary stay while Phillips considers the request and that she rule on the petitions by midday on Monday.

If she refuses, the administration said it would make the same request to the appeals court.


The Pentagon said on Thursday it had advised its lawyers in the field of the judge’s ruling, but warned of significant consequences if it took full effect.

“The military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas,” Defense Under Secretary of Defense for Personnel and Readiness Clifford Stanley said in a declaration to the court.

He said that if her ruling was overturned later by an appeals court and some gay and lesbian service members revealed their sexual orientation, the military would face the question of whether to discharge them.

“The stakes here are so high, and the potential harm so great, that caution is in order,” he said.

The lawsuit challenging the policy was brought by the Log Cabin Republicans organization, which said it was not surprised by the appeal by the Obama administration but expected their group to prevail in the end.

“Log Cabin Republicans will continue to advocate on behalf of the American service members who every day sacrifice in defense of our nation and our Constitution,” said Christian Berle, deputy executive director of the group. “If this stay is granted, justice will be delayed, but it will not be denied.”

Additional reporting by Steve Holland and Patricia Zengerle; Editing by Doina Chiacu