Supreme Court lets 'don't ask, don't tell' stand for now

WASHINGTON - The Supreme Court on Friday allowed the Pentagon to continue preventing openly gay people from serving in the military while a federal appeals court reviews the "don't ask, don't tell" policy.

The court did not comment in denying a request from the Log Cabin Republicans, a gay rights group, to step into the ongoing federal court review of "don't ask, don't tell."

The Obama administration urged the high court not to get involved at this point.

Last month, a federal judge ruled that the policy violates the civil rights of gay Americans and she issued an injunction barring the Pentagon from applying it. But the San Francisco-based appeals court said the policy could remain in effect while it considers the administration's appeal.

"Log Cabin Republicans are disappointed that the Supreme Court decided to maintain the status quo with regards to 'don't ask, don't tell,' but we are not surprised," said R. Clarke Cooper, the group's executive director. "We are committed to pursuing every avenue in the fight against this failed and unconstitutional policy."

President Barack Obama has pledged to push lawmakers to repeal the law in the lame-duck session before a new Congress is sworn in.

But administration lawyers have in the meantime defended "don't ask, don't tell" in court.

The policy, which prohibits gays and lesbians from serving openly in the military, was lifted for eight days in October after U.S. District Judge Virginia Phillips ruled that it is unconstitutional. The Obama administration asked the appeals court to reinstate the ban until it could hear arguments on the broader constitutional issues next year.

Justice Elena Kagan did not take part in the court's consideration of the issue. Kagan served as the administration's chief Supreme Court lawyer before she became a justice in August.

Whenever a justice is recused, that raises the possibility of a 4 to 4 tie. But in this case, it also robs those who oppose "don't ask, don't tell" of a justice likely to be sympathetic. While dean of Harvard Law School, Kagan was an outspoken critic of the policy, though she told conservative critics during her confirmation hearings - both as solicitor general and for the Supreme Court - that she could separate her personal opinion from her legal analysis.

The potential for a tie also increases the importance of the circuit court's opinion. A tie means that the lower court's decision stands but without setting a national precedent.

With the Los Angeles Times