Court: ‘Don’t Ask, Don’t Tell’ can stand - for now

WASHINGTON (RNN) - The Ninth Circuit Court of Appeals granted the Obama administration's request for a temporary stay against "Don't Ask, Don't Tell," putting U.S. District Court Judge Virginia Phillips' ruling that the law is unconstitutional on hold.

The order bars the Pentagon from accepting applications from openly gay recruits, a process it began on Monday.

"The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented," stated the ruling, which was issued by a three-judge panel.

Both sides were given until Monday to file briefs for the panel's consideration. The judges will then decide if the temporary stay should become permanent until the lawsuit is fully resolved in court.

The motion filed by the Obama administration said that the ruling "risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute."

The Justice Department requested that "Don't Ask, Don't Tell" stand until a study being prepared by Defense Secretary Robert Gates is completed Dec. 1, the American Forces Press Service said.

Gates' plan would include a transition process and training to ensure all members of the armed services understood the policy change, said Marine Corp Col. David Lapan, a Pentagon spokesman.

"The review that is going on would look at the far-ranging impacts of what changing the law would mean," Lapan said.

Phillips had denied the government's request for a stay on Monday, saying that the law's unconstitutionality superseded the government's concerns.

Between Monday's ruling and Tuesday's reversal, recruiters accepted applications from openly gay individuals. No security issues were reported by the military.

The executive director of the organization that originally filed the suit said Tuesday's decision by the court was disappointing and served to "prolong the injustice" that is "Don't Ask, Don't Tell."

"For over eight days, the armed forces have not only survived but thrived without the burden of this failed policy," Log Cabin Republicans Executive Director R. Clarke Cooper said in a press release. "It is disappointing the Obama administration has forced the military into a see-saw of 'on-again, off-again' enforcement of a law which remains an unnecessary distraction for military commanders and their subordinates."

The Department of Defense, however, applauded the court for its decision on Thursday.

"For the reasons stated in the government's submission, we believe a stay is appropriate," Pentagon spokeswoman Cynthia Smith said in a press release.

The attorney for the Log Cabin Republicans remained optimistic that the temporary stay would not become permanent, calling the ruling nothing more than a minor setback.

"We didn't come this far to quit now," said Dan Woods, a partner at White & Case.

In wake of the ruling, gay rights groups are calling attention to President Obama, who pledged that "Don't Ask, Don't Tell" would end under his watch but seems to be back-stepping on his promises.

"The revival of the 'Don't Ask, Don't Tell' law is a sad day for all Americans who want the best and brightest service members defending our country," Human Rights Campaign President Joe Solmonese said in the release. "Today's decision only furthers our resolve to send this law to the dustbin of history and also draws a spotlight on the administration to make good on their pledge to end these discharges that damage our national history. "

In a White House press briefing Monday, Press Secretary Robert Gibbs reiterated Obama's beliefs that the law is "unjust" and "discriminatory," but he refused to use the word "unconstitutional."

Gibbs stated that the president does not have the authority to sign an executive order to repeal the law, something that some critics disagree with.

Gibbs said the Obama administration believes a repeal of the law will come in during Congress' lame duck session.

"We believe that, as the Pentagon studies a process for an orderly transition that we think will come to pass in repeal of the law," he said.

Many, however, believe that Obama is simply not doing enough. Lt. Dan Choice, who was discharged from the army after coming out on "The Rachel Maddow Show" said on Twitter that he is done with Obama.

"After what he did today, I will not vote for Barack Obama," he tweeted.

The lawsuit "Log Cabin Republicans versus U.S.A. and Donald H. Rumsfeld" was originally filed in a federal district court in Riverside, CA in 2004. Phillips sided with the Log Cabin Republicans, declaring the legislation unconstitutional, on Sept. 9.

In her ruling, Phillips said that the law violated the First and Fifth Amendments to the Constitution.

"The act known as 'Don't Ask, Don't Tell' infringes the fundamental rights of United States service members and prospective service members and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution," the ruling said.


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