Nation - Judge acts while others debate gay policy

By Pete Yost

Associated Press Writer

WASHINGTON (AP) -- A U.S. judge's order for an immediate end to the military's "don't ask, don't tell" policy forces the Obama administration to decide whether to keep pushing to delay doing what the president says is the right thing -- allowing gays to serve openly in the military.

The policy forbids the military from asking about a service member's sexual orientation but retains a ban on gays disclosing their status.

The court ruling is a boost for gay rights groups seeking swift change, who are disappointed that legislation President Barack Obama helped craft to end the policy is likely to languish in Congress until next year. Democrats are expected to have fewer seats and less power to override Republican objections after the Nov. 2 elections. Obama has said Congress should take the lead in repealing the law.

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen, the military's top uniformed officer, also have supported lifting the ban on gays serving openly. But Gates and Mullen prefer to move slowly to avoid disrupting a military engaged in war.

Meantime, despite a federal judge's ruling in San Diego on Tuesday, the battle in the courts over gays in the military may be far from over.

The Justice Department's first response may well be another trip to the courtroom of U.S. District Judge Virginia Phillips in San Diego to seek a stay, or temporary freeze, of her ruling. If Phillips turns down the request, the Justice Department would likely turn to the federal appeals court in California.

It was unclear whether Phillips' injunction against the 17-year-old policy on gays in the military would affect any ongoing cases.

If the government does not appeal, the injunction cannot be reversed and would remain in effect. If the government does appeal, that would put the Obama administration in the position of continuing to defend a law it opposes.

Pentagon spokesman Geoff Morrell, traveling with Gates in Hanoi, Vietnam, said, "We have just learned of the ruling and are now studying it. We will be in consultation with the Department of Justice about how best to proceed."

With so much uncertainty, it also was unclear whether the ruling would have any immediate effect on the election campaigns that so far have focused far more on economic issues.

Gay rights groups warned gay troops not to disclose their identity for now. Aaron Tax, the legal director for the Servicemembers Legal Defense Network, said he expects the Justice Department to appeal the case to the U.S. 9th Circuit Court of Appeals.

"Service members must proceed safely and should not come out at this time," Tax said in a statement.

Gates, a Republican, and Mullen face disagreement among the most senior general officers on whether lifting the ban would cause serious disruption at a time when troops are fighting in Afghanistan and winding down a long war in Iraq.

For example, the incoming Marine commandant, Gen. Joseph Amos, and his predecessor, Gen. James Conway, both have told Congress that they think most Marines would be uncomfortable with the change and that the current policy works.

In part to resolve the question of how the troops feel, Gates has ordered a study due Dec. 1 that includes a survey of troops and their families.

Obama agreed to the Pentagon study. Obama also worked with Democrats to write a bill that would have lifted the ban, pending completion of the Defense Department review and certification from the military that troop morale wouldn't suffer. That legislation passed the House but was blocked in the Senate by Republicans.

Democrats could revive the legislation in Congress' lame-duck session after the election.

Published: Thu, Oct 14, 2010