WASHINGTON -- The military's "don't ask, don't tell" policy on gay service members can remain in effect indefinitely while the government challenges a judge's ruling that declared the policy unconstitutional, a U.S. appeals court said Monday.
The 2-1 ruling extends a "temporary" order handed down two weeks ago by the U.S. 9th Circuit Court of Appeals in San Francisco. It set aside an injunction issued by a federal judge in Riverside, Calif., who told the Pentagon it must immediately suspend enforcement of the 1993 law that calls for discharging openly gay men and women.
In September, U.S. District Judge Virginia Phillips became the first to rule the discriminatory policy was unconstitutional. She acted on a suit brought six years ago by the Log Cabin Republicans.
The Obama administration said it agreed the "don't ask" policy was wrong and should be repealed by Congress, but it also opposed the judge's order requiring an immediate suspension of the law.
Typically, appellate courts allow the government to keep disputed federal laws in effect until they are finally struck down. Judges Diarmuid O'Scannlain and Stephen Trott cited those precedents in Monday's six-page order that extended the stay. They said the government had made a "convincing" case that the "public interest (is) in ensuring an orderly change of this magnitude in the military."
Dissenting Judge William Fletcher said he would have lifted the stay in part to prevent the Pentagon "from actually discharging any more from the military" under the disputed policy.
Defense Secretary Robert Gates said recently that routine discharges under the policy would be stopped, and that no one will be removed unless the action has been approved by the top civilian officials.
In September, Senate Democrats had hoped to authorize the repeal of the "don't ask, don't tell" policy, but the minority Republicans voted in bloc to prevent the issue from coming to a vote. The Democrats could try again after Congress returns following the election.