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, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.
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 Ronald Reagan and one appointed by President Bill 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 if they already are serving.
"We continue to warn service members that it is unsafe to come out as long as this law remains on the books," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.
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 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. "Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot."
Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether 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 the panel had heard oral arguments before granting the stay. Fletcher said he thinks "don't tell, don't tell" should not be used to discharge any existing service members while the case was on appeal.
"Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices," Fletcher said.
President Barack Obama repeatedly has said he opposes "don't ask, don't tell" but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.
The president has pledged to push for another vote during Congress' lame duck session after Tuesday's elections.
"The president claims to want to see 'don't ask, don't tell' ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns," said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn "don't ask, don't tell" in Phillips' court,
The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.
"For the reasons stated in the government's submission to the appellate court, we believe the stay is appropriate," Pentagon spokesman Bryan Whitman said.