By Peter Henderson, Reuters
SAN FRANCISCO –A federal appeals court ruled on Wednesday that the Pentagon may temporarily reinstate a ban on openly gay men and women in uniform while a lengthier stay in favor of the “don’t ask, don’t tell” policy is considered. The ruling by the 9th U.S. Circuit Court of Appeals in San Francisco added to the disarray surrounding a landmark legal battle that already has forced the U.S. military to welcome openly gay recruits for the first time. Siding with the Obama administration, a three-judge appellate panel lifted an injunction issued last week by U.S. District Judge Virginia Phillips that barred further enforcement of a law requiring gay men and lesbians in the armed forces to keep their sexual orientation private. She refused on Tuesday to lift her own injunction, prompting the administration to petition the appeals court. Her injunction will now be suspended while the 9th Circuit considers the administration’s request for a longer-term stay to remain in effect during the government’s overall appeal. A 9th Circuit ruling on a full-blown stay pending appeal is expected after lawyers for the Log Cabin Republicans, the gay rights group challenging the ban, files its response to that motion in court. The court gave them five days to file. The group’s lead attorney in the case, Dan Woods, called the one-page order from the appeals court a minor setback and said he expected to ultimately prevail in the case. The emergency stay came as some gay veterans expelled under the “don’t ask, don’t tell” policy have sought to re-enlist in a test of the lower-court decision.
The Obama administration insists it supports ending the ban but prefers a political rather than court-imposed remedy, and has urged the courts to give the military more time to make the transition on its own. Phillips ruled in September that the military’s 17-year-old policy infringes on the constitutional free-speech and due-process rights of gay men and women in the armed forces. She put that opinion into effect on Oct. 12 with a blanket injunction requiring the military to stop enforcing the ban and halt pending investigations and discharges stemming from it.