WASHINGTON – Acting on a request from the Obama administration, a federal appeals court in San Francisco Wednesday lifted a judge’s order that had halted enforcement of the military’s “don’t ask, don’t tell” policy on gays, leaving the much-disputed law in legal limbo.
The three-judge panel said it was setting aside the judge’s order “temporarily” to give it time to “consider fully the issues presented.” It gave opponents of the law until Monday to file a fuller motion arguing why the judge’s order should stay in effect.
The emergency order from the 9th U.S. Circuit Court of Appeals came just a day after the Pentagon had announced it would permit openly gay men and women to enlist in the armed forces.
While Wednesday’s order is a victory of sorts for the Justice Department, it resolves none of the broader questions over whether or when the “don’t ask, don’t tell” policy will end. Instead, it preserves the political predicament for the Obama administration and the practical problem for the Pentagon.
On the one hand, President Barack Obama has said the ban on gays in the military is wrong and must be repealed. But he wants the law repealed by Congress. In September, Senate Republicans blocked a floor vote on a bill that would have repealed the policy. Still, Obama has said he has a duty as president to defend the laws on the books.
The mixed message from the White House has come at a particularly inopportune time. With midterm elections bearing down on him, the president is desperately trying to help Democrats hold onto congressional majorities by firing up the party’s liberal base.
Gay and lesbian activists are well aware that the administration is at least partly to blame for preserving the anti-gay policy at the Pentagon, and many are angry about it. This comes at a moment when many party progressives are wondering what they got out of the Democratic leaders and president they worked to help elect.
Dan Woods, the Los Angeles lawyer for the Log Cabin Republicans, had a muted reaction to Wednesday’s appeals court order.
“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,” Woods said. “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, and the district court’s injunction, which it entered after hearing all the evidence in the case, will remain in place until the appeal is finally decided.”
Cynthia O. Smith, a Pentagon spokeswoman, said “For the reasons stated in the government’s submission, we believe a stay is appropriate.”
Six years ago, the Log Cabin Republicans filed suit in Riverside, Calif., arguing that anti-gay policy violated the constitutional rights of gay servicemen and hurt the military. In September, U.S. District Judge Virginia Phillips agreed and declared the law unconstitutional.
On Oct. 12, she went further and handed down a worldwide injunction that required the government to immediately suspend enforcement of the law.
Her order is the subject of the current round of appeals.
On Wednesday morning, the Justice Department filed a 25-page motion with the judges in San Francisco arguing that the judge, acting alone, had gone too far, too fast.
A “sweeping injunction against a duly enacted Act of Congress” was wrong as a matter of law, the government’s lawyers said. It is “at odds with basic principles of judicial restraint requiring courts to limit injunctive relief to the parties before the court, and is contrary to decisions of other courts, which have sustained the constitutionality of the statute.”
Moreover, the judge’s order has caused “confusion and uncertainty” at the Pentagon and among gays and lesbians in the ranks, the government said. If an appeals court later reverses the judge and affirms the constitutionality of the law, it “would create tremendous uncertainty about the status of service members who may reveal their sexual orientation in reliance” on the judge’s order suspending the law, the government said.
On Wednesday afternoon, the panel issued a two-sentence order granting the “emergency motion” to stay Judge Phillips’ order.