Administration is expected to appeal 'don't ask' injunction

By Glenn Kessler and Ed O'Keefe
Thursday, October 14, 2010; A3

The effort to repeal the law barring gay men and lesbians from serving openly in the U.S. military is nearing a chaotic endgame involving fast-moving courts, a slow-moving military, a lame-duck Congress and an administration increasingly caught in the middle.

When the dust settles by the end of the year, the military's "don't ask, don't tell" policy could be history - or it could remain on the books, with a new right-leaning Congress disinclined to do anything about it.

The Obama administration, which is seeking a repeal of the law, nevertheless is expected to appeal a ruling by a California federal judge who declared the policy unconstitutional. The administration is also expected to seek a stay of the judge's injunction Tuesday ordering the military to immediately stop enforcing the ban worldwide.

The Justice Department is generally required to uphold existing law and is expected to appeal rulings even when the president might agree with them. But Walter Dellinger, who was solicitor general in the Clinton administration, said an appeal could make clear that the president believes the law is unconstitutional, an approach President Bill Clinton took in 1996 concerning a law that would have required the discharge of HIV-positive service members from the military.

"I think this is the answer," Dellinger said, noting that it would be politically untenable to allow a single district judge to set law for the country in a case that the Supreme Court has not heard. "Let the courts decide, but tell them what you think."

Originally, the Obama administration wanted Congress to do away with "don't ask, don't tell." President Obama called for a repeal of the law in his State of the Union address and won public support from Defense Secretary Robert M. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

Public opinion was working in the administration's favor. More than 75 percent of Americans think that gay men and lesbians should be allowed to serve openly in the military, a support rate higher than at any other time since the policy took effect in 1993, according to the most recent Washington Post-ABC News poll.

But Congress and the military have been moving on their own timetables.

The president agreed to give the Pentagon time to study how to end the ban. Meanwhile, even though the Democratic-controlled House voted for repeal in May, the Senate did not follow suit last month, after falling short of the necessary votes on a procedural move.

Senate Majority Leader Harry M. Reid (D-Nev.), who is in a tough reelection race, has said he would push for reconsideration of the legislation later this year. But on Wednesday, aides for Reid and Armed Services Chairman Carl M. Levin (D-Mich.) said it is unclear when the Senate might reconsider the defense authorization bill that contains the proposed repeal.

Proceeding in a lame-duck Congress poses its own problems. Three of the newly elected senators - from Delaware, Illinois and West Virginia - will be sworn in almost immediately, and if all three seats switch to the Republican side of the aisle, that could mean three fewer votes for repeal. Democrats need 60 ayes to proceed to a final vote on the bill.

Twenty-one Senate Democrats wrote to Attorney General Eric H. Holder Jr. recently, urging that he not appeal the court ruling, arguing that it "could set back congressional efforts."

Elaine Donnelly, executive director of the Center for Military Readiness, a group opposed to lifting the ban, predicted that repeal efforts will fail regardless of the Senate's political balance. "Awareness of the issue is growing" among lawmakers and the general public, she said.

Gates said Wednesday that the Pentagon needs until December to resolve questions such as whether heterosexual troops would be required to share housing with gays and whether the military would be required to provide benefits for same-sex partners of service members.

"This is a very complex business. It has enormous consequences for our troops," Gates told reporters as he flew to Brussels for a NATO meeting. "As I have said from the very beginning, there should be legislation, and that legislation should be informed by the review we have underway."

The White House took a philosophical approach to the ruling by District Judge Virginia Phillips, with press secretary Robert Gibbs saying the question about "don't ask, don't tell" is not "whether it will end but the process by which it will end."

"I think that the courts have demonstrated that the time is ticking on the policy of 'don't ask, don't tell,' " he said. "Obviously, it would be better to have all the branches of government aligned in how we do this. That would add some order to it that would make this easier to do."

Gay rights advocates fear endless wrangling, however, if Congress does not act and a legal process is needed to resolve the matter.

"We know this issue could be stuck in the courts for years, and service members need finality," said Trevor Thomas, a spokesman for Servicemembers Legal Defense Network, a group representing service members.

Staff writers Scott Wilson in Washington and Craig Whitlock in Brussels contributed to this report.

© 2010 The Washington Post Company