By Sandhya Somashekhar and Ed O'Keefe
Washington Post Staff Writers
Friday, October 15, 2010; A3
The Pentagon announced Thursday that it will comply with a court order to stop enforcing its "don't ask, don't tell" policy barring gays from serving openly in the military, even as the Obama administration asked a federal judge to delay implementation of the ruling.
Officials say they need time to institute new policies to ensure that the change won't affect combat readiness or morale. The administration has said it will appeal the ruling to the the U.S. Court of Appeals for the 9th Circuit.
In the meantime, "the Department of Defense will of course obey the law," Col. Dave Lapan, a department spokesman, said in an e-mail to reporters. The Pentagon will cease investigations and discharges of service members found to be in violation of the policy, officials said.
Despite the Pentagon's announcement, the Servicemembers Legal Defense Fund, a group that supports ending the ban, has encouraged gay military members not to disclose their sexual orientation.
"It is clear there is confusion, and this interim period is dangerous for service members," Executive Director Aubrey Sarvis said in a statement. "Our service members need finality."
In September, District Judge Virginia A. Phillips ruled that the 17-year-old policy violates due process and the First Amendment rights of gay service members. Rather than being necessary for military readiness, she said, the policy has a "direct and deleterious effect" on the armed forces. On Tuesday, she ordered the military to comply immediately with her ruling.
The case was brought by the Log Cabin Republicans, a 19,000-member gay advocacy group that includes current and former military members. The group argued during a two-week trial in July that the policy is unconstitutional and should be struck down. Lawyers for the group plan to respond to the government's application for a stay within 24 hours, a spokeswoman said.
The case is one of two related to "don't ask, don't tell" that have been deliberated this year in federal court. Last month, a judge in Washington state ordered the reinstatement of a decorated Air Force officer who was dismissed for revealing that she is a lesbian.
The administration's decision Thursday to ask for a stay of Phillips's court order was criticized by gay rights groups, which have been frustrated by government inaction on the policy. While running for president, Obama said he would repeal the law. But in September, Senate Democrats were unable to muster the 60 votes needed to begin debate.
"Today's appeal by President Obama's Department of Justice is not only indefensible - it is yet another shocking lack of leadership from the White House on issues of equality for the LGBT community," said Robin McGehee, director of GetEqual, an advocacy group.
Groups also criticized the administration for appealing a decision by a federal judge in Massachusetts that invalidated the Defense of Marriage Act, which bars the federal government from recognizing legal same-sex marriages.
According to recent Washington Post polls, 75 percent of respondents said they think gays should be allowed to serve openly in the military, and nearly half think they should be allowed to legally wed.
Obama has said that he opposes "don't ask, don't tell" but that he prefers that it be repealed by Congress.
"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," spokeswoman Tracy Schmaler said in a statement. "The President believes and has repeatedly affirmed that 'don't ask, don't tell' is a bad policy that harms our national security and undermines our military effectiveness. . . . The President and his Administration are working with the military leadership and Congress to repeal this law."
At an MTV forum Thursday, when Obama was pressed by an audience member on why he hasn't ended the policy, the president said his hands are tied until the Senate acts.
"This is not a situation in which, with the stroke of a pen, I can end the policy," he said. "I think people are born with a certain makeup and that we're all children of God. We don't make determinations about who we love."
In another dust-up, White House senior adviser Valerie Jarrett apologized Thursday for referring to homosexuality as a "lifestyle choice" in a Washingtonpost.com video discussion.
"I apologize to any who have taken offense at my poor choice of words," she wrote in an e-mail to columnist Jonathan Capehart. "Sexual orientation and gender identity are not a choice, and anyone who knows me and my work over the years knows that I am a firm believer and supporter in the rights of LGBT Americans."