Pentagon faces new questions after judge's ruling on openly gay troops

President Obama signed the landmark repeal of "don't ask, don't tell" Wednesday morning, ending a 17-year ban on gays serving openly in the military.
By Greg Jaffe
Washington Post Staff Writer
Friday, September 10, 2010; 7:57 PM

A court ruling that the military's ban on openly gay service members is illegal is raising questions inside the Pentagon about whether the military's current preparations for a possible repeal of the law are still relevant.

"As you might suspect, bunches of lawyers are analyzing this ruling," a senior defense official said Friday.

A federal judge in California ruled late Thursday that the military's "don't ask, don't tell" policy violated the constitutional rights of gays and lesbians and was detrimental to the readiness of the force.

In February, Defense Secretary Robert M. Gates ordered the Pentagon to complete a wide-ranging study on how to best integrate gay men and lesbians in the force. That study probably will be completed in December.

Gates has urged Congress to hold off on implementing any repeal of the law until the military's study is completed.

In her ruling, U.S. District Judge Virginia A. Phillips granted a request to stop the military from enforcing "don't ask, don't tell" but allowed the government to appeal the ruling before the injunction went into effect.

It was still unclear Friday whether the U.S. government would seek to suspend the injunction pending an appeal of the judge's ruling.

President Obama has said that he supports a repeal of the law. But it is likely that the government will appeal the decision to allow the Pentagon the opportunity to complete its study.

The senior defense official said that, among other issues, the Pentagon is concerned that Thursday's ruling might allow troops who were discharged under "don't ask, don't tell" to sue the federal government for back pay and retirement benefits.

If the government appeals the ruling, the Pentagon would probably still have time to finish its plan for integrating openly gay men and lesbians into the force before the injunction against the law takes effect.

But if the government chooses not to appeal, the Pentagon's plans could be thrown into disarray.

Gates has assigned Gen. Carter F. Ham, the commander of the U.S. Army Europe, and Jeh C. Johnson, the Pentagon's chief legal counsel, to issue recommendations by Dec. 1 on how to integrate the armed forces. Among the issues they will have to sort out are whether spousal benefits will apply to same-sex couples, whether gay and straight troops will share barracks, and attendance at military social functions.

The court's decision is also likely to increase the pressure on Congress to move on legislation to repeal the policy.

The House passed its measure lifting the "don't ask, don't tell" policy in May, but the Senate's version has been stalled and might be considered in the next three weeks. Democrats blamed Sen. John McCain (Ariz.), who was facing a potentially difficult primary challenge from a conservative Republican, for holding up the legislation until he secured his victory last month. "Now that his primary is over, we hope that he will allow us to take this bill to the floor," Jim Manley, a spokesman for Majority Leader Harry M. Reid (D-Nev.), said Friday.

McCain's office did not return requests for comment .

The judge has asked the plaintiffs in the case, which was brought by the Log Cabin Republicans, to submit proposed language for an injunction by next week.

"At least from my viewpoint, there are more questions than answers at this point," the senior defense official said.

Staff writer Paul Kane contributed to this report.

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