The Obama administration won a temporary stay against the moratorium on "don't ask, don't tell" Wednesday, granting the Pentagon the right to once again enforce the 17-year-old ban on gay men and women serving openly in the military.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit issued the decision, giving itself time to consider the Justice Department's appeal of last week's injunction by U.S. District Judge Virginia A. Phillips.
Wednesday's stay was the latest volley in an issue ping-ponging its way through the courts.
The Log Cabin Republicans (LCR), a pro-gay group that brought the suit challenging the constitutionality of "don't ask, don't tell," have until Monday to appeal the 9th Circuit decision.
"While we are disappointed with the court's ruling granting a temporary administrative stay, we view the decision as nothing more than a minor setback," said Dan Woods, the attorney representing LCR. "We didn't come this far to quit now, and we expect that once the 9th Circuit has received and considered full briefing on the government's application for a stay, it will deny that application."
This "is not a decision on the merits; it's an even more temporary decision," said Richard Socarides, a former gay-rights adviser to President Bill Clinton who is tracking the issue closely.
"For the reasons stated in the government's submission, we believe a stay is appropriate," Pentagon spokeswoman Cynthia Smith said. It will be issuing additional guidance regarding the decision, she said. The Justice Department had no immediate comment, according to a spokeswoman.
The military is back to where it was before Phillips caught it by surprise last Tuesday with her injunction. Since then, the Pentagon has instructed military recruiters to accept openly gay and lesbian applicants, though few have been known to apply, according to gay rights groups.
As for any gay or lesbian people who enlisted this week, "They may be told they cannot join," if the Pentagon decides to enforce the law, said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, a group representing service members affected by the law.
But the military's decision to follow Phillips's order proves it is ready to accept gay and lesbian service members, said Aaron Belkin, executive director of the Palm Center at the University of California at Santa Barbara. The think tank studies gays in the military and supports lifting the "don't ask, don't tell" ban.
"Look what happened last week: The military suspended ["don't ask, don't tell"] with no training, and guess what? Nothing happened," Belkin said
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