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Court grants government plea on don't ask don't tell (Roundup)

Oct 21, 2010, 2:17 GMT

San Francisco - A federal appeals court on Wednesday granted an emergency government appeal delaying implementation of a lower court order that had lifted the policy that keeps openly gay people from serving in the military.

The decision by the Ninth Circuit Court of Appeals will remain in force while it decides on the government's motion against the lower court's ruling last month that found the ban against openly gay people in the military was unconstitutional.

In its emergency filing Wednesday, President Barack Obama's administration argued that changing the 'don't ask don't tell' policy immediately as ordered by a federal court in California 'risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.'

The 25-page motion also argued that the Justice Department had a duty to defend the 'don't ask don't tell' policy as enacted by Congress, saying that the 'sweeping injunction against a duly enacted Act of Congress' was wrong as a matter of law.

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,' the motion said.

Obama advisor David Axelrod told CNN that the administration was committed to ending the policy, but that it would take time.

'This president has made a commitment, and it's not a question of whether that programme, whether that policy will change, but when,' Axelrod said. 'We're at the end of a process with the Pentagon to make that transition, and we're going to see it through.'

The appeal came a day after Judge Virginia Phillips rejected government requests for a stay to delay implementation of her ruling during the appeals process and after the military began accepting applications from openly gay individuals to comply with the decision.

It remained unclear what effect the appeals court's decision would have on recruiters after they began processing openly gay applicants a day earlier.

Pentagon spokeswoman Cynthia Smith emphasized Tuesday that in the past recruiters would not ask an applicant about their sexual preference and that policy has not changed. The only difference, she said, was that gays or lesbians won't be turned away if they reveal the sexuality.

'We still don't ask, so it would have to be up to the applicant's discretion as to whether he or she would want to make that information known to the recruiter,' she said as the military changed its policy to comply with the earlier court ruling. She added that openly gay applicants would be warned that a 'court reversal may occur at any time.'

Phillips determined on September 12 that requiring gays to keep their homosexuality a secret effectively denies free speech and violated the first amendment of the US Constitution.

A Pentagon evaluation on how to get rid of 'don't ask don't tell' is due December 1. Obama's effort to repeal the law was blocked by Senate Republicans in September, but the issue is expected to resurface on the Senate floor in the coming weeks.

More than 10,000 men and women have been expelled since 'don't ask don't tell' went into effect once their sexuality was revealed, according to gay rights groups.

US Defence Secretary Robert Gates in February announced plans to repeal 'don't ask, don't tell' and established a commission to study the best way to implement a new policy.

In March, he issued new rules to make it harder to expel individuals from the military pending the outcome of formulating a new policy.

The Pentagon's commission is to determine how openly gay members of the military can be integrated into the rank-and-file with minimal disruptions, and Gates has stated his desire to change the policy slowly and cautiously.

Opponents of lifting the ban worried that open homosexuality could disrupt discipline within the ranks and ultimately harm combat effectiveness. Gay rights groups said the current policy has deprived the military of talent, such as Arabic language specialists.

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