The action means the Pentagon’s ban on service members who are openly homosexual is, once again, in full force.
The policy was thrown into doubt last week when a federal judge in Riverside, Calif., declared the 17-year measure unconstitutional. As the government scrambled to halt the injunction, military recruiters for the first time began to consider openly gay recruits. Those efforts are now on hold.
In granting the stay, the three-judge panel of the Ninth US Circuit Court of Appeals is allowing government lawyers more time to prepare their argument. The government is seeking a longer-term stay that would hold the injunction in abeyance for the duration of the appeal.
The court set an Oct. 25 deadline for an opposition brief in the case. The gay group Log Cabin Republicans had successfully challenged the don’t ask, don’t tell policy and is opposed to any effort to delay the injunction.
Once the stay issue is resolved, government lawyers will turn to the heart of their appeal, asking the Ninth Circuit panel to reverse the judge’s ruling that the policy is unconstitutional.
The don’t ask, don’t tell policy allows gay and lesbian individuals to serve in the armed forces, but it requires that they keep their sexual orientation private. If disclosed, they would face expulsion from the military.
US District Judge Virginia Phillips ruled that the policy violates the constitutional rights of gay and lesbian service members. Last week, she ordered the military to stop enforcing the policy.
Government lawyers asked the judge to postpone her injunction while they appealed the underlying ruling. The lawyers said the sudden imposition of a worldwide injunction was too disruptive and would undercut morale and military readiness at a time when the US is fighting two wars overseas. Judge Phillips disagreed that it would be disruptive. She refused to issue a stay.
The mounting legal battle is taking place amid the backdrop of a White House administration that favors repeal of the don’t ask, don’t tell policy. But administration officials say they would prefer that the law and policy be changed gradually by Congress, not suddenly by the courts.