By Ed O'Keefe
Washington Post Staff Writer
Thursday, October 21, 2010; 12:26 AM
The Obama administration won a temporary stay against the moratorium on "don't ask, don't tell" Wednesday, granting the Pentagon the right to once again enforce the 17-year-old ban on gay men and women serving openly in the military.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit issued the decision, giving itself time to consider the Justice Department's appeal of last week's injunction by U.S. District Judge Virginia A. Phillips.
Wednesday's stay was the latest volley in an issue ping-ponging its way through the courts.
The Log Cabin Republicans (LCR), a pro-gay group that brought the suit challenging the constitutionality of "don't ask, don't tell," have until Monday to appeal the 9th Circuit decision.
"While we are disappointed with the court's ruling granting a temporary administrative stay, we view the decision as nothing more than a minor setback," said Dan Woods, the attorney representing LCR. "We didn't come this far to quit now, and we expect that once the 9th Circuit has received and considered full briefing on the government's application for a stay, it will deny that application."
This "is not a decision on the merits; it's an even more temporary decision," said Richard Socarides, a former gay-rights adviser to President Bill Clinton who is tracking the issue closely.
"For the reasons stated in the government's submission, we believe a stay is appropriate," Pentagon spokeswoman Cynthia Smith said. It will be issuing additional guidance regarding the decision, she said. The Justice Department had no immediate comment, according to a spokeswoman.
The military is back to where it was before Phillips caught it by surprise last Tuesday with her injunction. Since then, the Pentagon has instructed military recruiters to accept openly gay and lesbian applicants, though few have been known to apply, according to gay rights groups.
As for any gay or lesbian people who enlisted this week, "They may be told they cannot join," if the Pentagon decides to enforce the law, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group representing service members affected by the law.
But the military's decision to follow Phillips's order proves it is ready to accept gay and lesbian service members, said Aaron Belkin, executive director of the Palm Center at the University of California at Santa Barbara. The think tank studies gays in the military and supports lifting the "don't ask, don't tell" ban.
"Look what happened last week: The military suspended ["don't ask, don't tell"] with no training, and guess what? Nothing happened," Belkin said.
Elaine Donnelly, executive director of the Center for Military Readiness, which opposes ending the law, disagreed, saying that allowing recruiters to accept gay and lesbian recruits created confusion. "Why would they tell recruiters that they should do something that has never been done in the history of the U.S. military?" Donnelly said. "There is no excuse for that, other than the president's political agenda."
Indeed, the Obama administration, which is seeking a repeal of "don't ask, don't tell," finds itself in an awkward position. The president has stated his opposition to the policy and is pushing Congress to repeal it, but the Justice Department is generally required to defend existing law.
It asked the 9th Circuit to lift Phillips's injunction, stating that a moratorium jeopardizes an ongoing review of how the Pentagon would end the ban.
In court papers, the Justice Department said Phillips's injunction "is at odds with basic principles of judicial restraint" because it blocks the Pentagon from enforcing the gay ban across the military and not just among members of LCR.
But LCR dismissed the government's argument, saying the Pentagon "has already acted nimbly" in response to the injunction by ordering recruiters to accept gay and lesbian applicants.
"The fact that the government can and did issue such instructions and comply with the injunction immediately shows that the military will not sustain irreparable harm from compliance and belies the need for any temporary stay," LCR argued in court papers.
"We're a little surprised that they're making the same old argument again," LCR Executive Director R. Clarke Cooper said. "One has to wonder what the tack here is. Is it that they think they have another shot at making the same arguments again?"
The Justice Department, suggested Socarides, "can only make the arguments that are politically consistent with the president's policy positions. And there aren't many of those arguments left."
Cooper and other gay rights advocates once again cautioned gays and lesbians to carefully consider discussing their sexuality with recruiters because of the law's uncertain future.