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Government asks Supreme Court to keep 'don't ask, don't tell' for now

By the CNN Wire Staff
  • The motion responds to a gay rights group's request for Supreme Court intervention
  • The case involves a federal judge's injunction against the "don't ask, don't tell" policy
  • An appeal of the injunction is taking place in the 9th Circuit Court of Appeals

Washington (CNN) -- The federal government on Wednesday asked the U.S. Supreme Court to back an appellate panel's ruling that would allow the military to temporarily continue enforcing its "don't ask, don't tell" policy that bans openly gay and lesbian soldiers.

Acting Solicitor General Neal Kumar Katyal argued in the government motion that the justices should reject a request by the Log Cabin Republicans to reinstate a federal judge's injunction against the "don't ask, don't tell" policy.

A supporting document by Clifford L. Stanley, the under secretary of defense for personnel and readiness, said forcing the military to immediately halt the 17-year-old policy while it appeals the case in the courts would cause problems during a time of war.

"The government intends to appeal" the federal judge's injunction, Stanley wrote. "During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the nation is involved in combat operations overseas."

Last week, lawyers for the Log Cabin Republicans, a gay rights group, filed an emergency request with the Supreme Court to reverse the 9th U.S. Circuit Court of Appeals' decision to allow the military to continue the policy while the government appeals the federal judge's injunction.

The appeals court, based in San Francisco, is currently debating the constitutionality of barring openly gay and lesbian members from the U.S. armed forces. Until the larger questions are decided, that court had allowed the current policy to remain in place, prompting the time-sensitive appeal to the Supreme Court.

In the emergency request by the Log Cabin Republicans, the justices are being asked to rule only on the narrow enforcement issue at this stage. They could tackle the constitutional questions after the appeals court issues its ruling.

The high court appeal -- called an "application" -- is in the hands of Justice Anthony Kennedy. He will likely ask his eight colleagues to help him decide.

U.S. District Judge Virginia Phillips had declared "don't ask, don't tell" unconstitutional in September, and later granted an injunction barring enforcement of the policy. The Justice Department requested a stay of that ruling, which was denied by Phillips but granted by the appeals court. The appeals court later overturned the district court's injunction.

In their order, the appeals judges noted that legislation pending before Congress to repeal the policy could render the case before them moot.

The House has passed a repeal provision, and the Senate could consider it as part of a broader defense authorization bill when it returns for a lame-duck session this month.

President Barack Obama wants to repeal the "don't ask, don't tell" policy and reached an agreement with Defense Secretary Robert Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, on a process that includes a military review of how to make a successful transition to a policy of allowing openly gay and lesbian soldiers to serve alongside straight colleagues. Obama, Gates and Mullen would then have to certify the repeal.

Gay rights groups say "don't ask, don't tell" violates the due process and First Amendment rights of military members.

In their appeal, Log Cabin Republicans said allowing the policy to remain in effect pending appeal is unacceptable and would cause "irreparable harm."

Katyal, in the government response filed Wednesday, said the case "does not present the sort of exceptional circumstances that would warrant interference with an interim order of the court of appeals."

"That court's stay simply preserves the status quo pending its consideration of the merits of this facial challenge to a federal statute governing military affairs that has been in force for 17 years," the government's response said.

The case puts the Obama's administration in an unusual position of supporting a repeal, but filing court motions to prevent it from happening faster than planned. The legislation before Congress includes the process for repeal agreed to with Gates and Mullen.

In response to the court case, Gates recently raised the level at which gay and lesbian troops can be discharged under "don't ask, don't tell" by ordering that it be done only by the secretaries of the Army, Navy and Air Force.

Since Gates made the change, no service member has been discharged, Pentagon spokesman Geoff Morrell said last week.

CNN's Tom Cohen, Bill Mears, Adam Levine and Jennifer Rizzo contributed to this story.