Justice Dept. seeks stay on injunction of military gay ban

The Obama administration on Thursday asked a federal judge for an emergency suspension of her recent injunction that stops the ban on openly gay people serving in the United States military.

The Department of Justice asked U.S. District Court Judge Virginia Phillips of California for a stay of her decision in preparation for the government's appeal of her ruling to do away with the law commonly known as "Don't ask, don't tell." That appeal would be made with the Ninth Circuit Court of Appeals.


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 repeal of the Clinton-era law. President Obama first promised to scrap the ban during his presidential campaign.

Earlier Thursday Pentagon lawyers said that the military would abide by the injunction, but a Pentagon spokesman acknowledged an appeal and request for a stay were imminent.

An e-mail sent to the Judge Advocate Generals Corps on Thursday, sent in consultation with the Pentagon’s general counsel, affirmed the Department of Defense's intention to obey the injunction, yet came as the Obama administration was expected to appeal the federal judge’s decision and seek to block the injunction.

The Department of Defense will abide by the terms in the court's ruling, effective as of the time and date of the ruling, Pentagon spokesman Col. Dave Lapan said in an e-mailed statement. The spokesman acknowledged in the statement that the “U.S. government is contemplating whether to appeal and to seek a stay of the injunction.”

Pentagon officials are concerned that immediately blocking the law would create logistical issues for a military that is deployed worldwide and would hamper the Pentagon's own efforts to review the impact a repeal of the law would have on the armed forces.

Judge Phillips on Tuesday barred the enforcement of the "Don't ask, don't tell" law. Phillips ordered the Department of Defense to halt investigations and discharges of military members stemming from the Clinton-era law. The case that won the nationwide injunction is Log Cabin Republicans v. United States of America. The federal judge last month issued a final ruling that "Don't ask, don't tell" was unconstitutional.

President Obama has committed to scrapping the ban, and the Pentagon is now reviewing the effect a repeal would have on the troops. Meanwhile, 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.

White House press secretary Robert Gibbs on Wednesday acknowledged the Justice Department is preparing to appeal a court’s decision against the law preventing gays from serving openly in the military, but said Obama is still committed to ending the policy.

Gibbs said the pressure is on the Senate to change the law, but the president is still working with the Pentagon, which should conclude its review on ending the policy in December to change the law if Congress won’t.

Gay rights groups said on Thursday that they were not surprised by the administration's decision to challenge the federal judge's decisions, but said that they were disappointed with the outcome nonetheless.

"The president needs to deliver on his promise to end the law this year.  Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington," said Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, an organization dedicated to the repeal of the law.  "Congress made this law over 17 years ago and Congress now has an affirmative responsibility to bring clarity and finality to ending this law."

—Sam Youngman contributed to this report

This story was updated at 8 p.m.