The Obama administration filed an emergency appeal Wednesday asking for a suspension of a decision that prevents enforcement of the military's "Don't ask, don't tell" policy.
The move by the Justice Department came one day after a federal judge refused to suspend the order to halt the ban on openly gay people serving in the military.
As expected, the Obama administration appealed Phillips's ruling, asking the Ninth Circuit Court of Appeals for an administrative stay on the injunction of the law. Legal experts say the court of appeals is likely to grant the Justice request for an administrative stay. That would give the parties time to fully brief the court so that it can decide whether there should be a suspension of the injunction while the case is on appeal.
The Department of Defense last week warned U.S. troops to be cautious about their conduct in the wake of a court order, but on Tuesday ordered military recruiters to accept gay applicants. Recruiters have also been asked to tell new recruits that the moratorium on enforcing "Don't ask, don't tell" could be overturned.
Clifford Stanley, the undersecretary of Defense for personnel and readiness, on Friday issued a memo to the secretaries of all military services stressing that the Department of Defense will abide by the terms of the injunction until a stay is granted. Stanley said that it remains Pentagon policy not to ask “service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure good maintenance of order and discipline.”
Stanley warned that because of the government’s appeal and request for a stay on the injunction, a “certain amount of uncertainty now exists about the future of the ‘Don’t ask, don’t tell’ law and policy.”
Service members who alter their personal conduct “may have adverse consequences for themselves or others should the court’s decision be reversed,” Stanley wrote.
Despite Phillips denying a stay on her injunction, gay-rights activists are warning that it is only a temporary situation.
"By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction," said Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, an organization solely dedicated to the repeal of the military's ban.
"During this interim period of uncertainty, service members must not come out. Our service members need finality."
The Obama administration's decision to challenge the federal judge's decision is rankling gay-rights activists who for months have been pressing for the law’s repeal. President Obama first promised to scrap the ban during his presidential campaign.
Gay-rights groups said on Thursday that they were not surprised by the administration's decision to challenge the court order, but that they were disappointed nonetheless.
The White House is putting pressure on Congress to scrap the ban. Lawmakers are in the middle of a tense midterm election season in which Republicans are expected to gain a large number of seats in the House and erode the Democrats’ majority in the Senate. That could make any agreement on repealing the law a tough proposition in Congress, since most Republicans are opposed to repeal.
The House has successfully included legislation to repeal “Don’t ask, don’t tell” in the 2011 defense authorization bill, but the Senate has yet to act on that legislation.
This article was updated at 1:30 p.m.