SAN FRANCISCO - A federal appeals court indefinitely extended its freeze on a judge's order halting enforcement of the military's "don't ask, don't tell" policy Monday, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the government's request for a stay while it challenges the trial court's ruling that the ban on openly gay service members is unconstitutional. On Oct. 20, the same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, imposed a temporary hold, keeping "don't ask, don't tell" in place.
Yesterday's decision means gay Americans who disclose their sexual orientations still can't enlist in the armed forces and can be investigated and ultimately discharged if they are already serving. "We continue to warn service members that it is unsafe to come out as long as this law remains on the books," said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.
In an eight-page order, two judges, Diarmuid F. O'Scannlain and Stephen S. Trott, said they were persuaded by the Justice Department argument that U.S. District Court Judge Virginia Phillips' worldwide injunction against the policy "will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change." Another reason they gave was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority.
Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he would have prevented "don't tell, don't tell" from being applied to discharge any existing service members while the case was on appeal.