Justice Department appeals 'don't ask, don't tell' ruling

The Justice Department Thursday requested a stay of a federal judge's injunction against enforcement of the "don't ask, don't tell" law that bars homosexual men and women from serving openly in the military. It also filed an appeal with the Ninth Circuit Court of Appeals challenging the judge's ruling that the 17-year-old law is unconstitutional.

The action drew immediate condemnation from gay and lesbian groups. Blasting it as "indefensible," Robin McGehee, director of GetEqual, said it was a sign of "yet another shocking lack of leadership" by the Obama White House.

"Yet again, we are faced with action by this administration that stands in stark contrast to the campaign rhetoric and lofty speeches about equality that continue to be served up as progress to our community," she said.

Joe Solmonese, president of Human Rights Campaign, criticized the appeal as "disappointing and frustrating." He called on the administration and Congress to enact "a durable legislative repeal of this discriminatory law" to settle the issue.

Clearly anticipating the condemnation from the gay and lesbian community, the White House sought to soften the sting of the announcement by promising that Obama will intensify his efforts to persuade the Senate to join the House in repealing "don't ask, don't tell."

"He's worked with members of the House to get it passed and will do so in the Senate as well," press secretary Robert Gibbs said.

Senate Republicans last month blocked debate on the fiscal year 2011 Defense authorization bill that would repeal the 1993 ban against openly gay men and women serving in the military, once the administration certifies that doing so would not hurt morale or unit cohesion. The House approved identical language during debate on the authorization bill in May.

The prospects for Senate passage were not considered good because Democrats do not have the needed 60 votes and the lame-duck session will be convened after an election where Republicans are almost certain to add to their numbers.

But Gibbs said that the president will push the Senate to act, noting that the best way to end the policy is not by a court ruling but by "legally repealing it." Gibbs also insisted that the president was personally involved both in pushing repeal and in assessing Tuesday's decision by U.S. District Judge Virginia Phillips in California.

Gibbs said Pentagon lawyers have also been "deeply involved in this," adding, "The Department of Defense is working on guidance for the entire chain of command that should be ready and out soon."

This much has been clear since this week's court decision: The Pentagon is still calling the shots on the controversial policy despite strong support for repeal by the president and better-than-majority support in Congress and among the public.

With the Justice Department expected to announce plans to appeal the court ruling, the White House is determined to do nothing that would rile the service chiefs, who are resisting letting gay men and women serve openly in the military.

Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, support repeal of "don't ask, don't tell." But they want the policy change to come from Congress and only after the Pentagon completes a study in December. The study includes a survey of military personnel and their spouses.

Gates this week told reporters, "I feel very strongly that this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation and a lot of training." At the White House, Gibbs similarly stressed the importance of an orderly process that lets the Pentagon recommend the best way to make the transition.

But many in Congress also defer to the military leaders. House Armed Services Committee ranking member Buck McKeon, R-Calif., warned against letting a federal judge order an immediate shift, stating that "the Department of Defense is unprepared to address the issues that are bound to arise from such a hasty change."

To get Congress to approve repeal, the administration will have to find additional supporters in the Senate. Sixty-seven percent of respondents to a recent CNN survey favor permitting gays and lesbians to serve openly in the military.

"While the public opinion has shifted dramatically, you still have some politicians who are living in the 1992 mind-set and haven't realized that the public has gotten much further ahead of them on this issue," said Michael Cole, a spokesman for the Human Rights Campaign.

But much of the foot-dragging can be attributed to a reluctance by most lawmakers to be seen as bucking the Pentagon in the middle of two wars. It is also partly a reflection of military leaders' skillful maneuvering.

"The Justice Department and the Department of Defense are probably the two hardest groups to out-argue," said Richard Socarides, a New York lawyer who served in the Clinton White House as the president's senior adviser on gay issues.

The key moment in the current effort, he said, came when Obama took office and opted for "convincing the Pentagon that they have to carry it out, but letting them do it in their own way and on their own timetable."

Just having the commander-in-chief set a new policy does not end the debate, Socarides said.

"The one rule that I learned in my decade in Washington is never think you can outsmart those Pentagon people," he said. "Because they will beat you every time. I think they said, 'Yes, sir. Anything you want, sir. Let us do it.' But the truth is, they stalled and they studied and they waited. And they hoped that the political environment would change."

With a more conservative Congress guaranteed after the election, Socarides said, "they may get their way."

But Larry Korb, a senior fellow at the Center for American Progress who served as the Pentagon's personnel director in the Reagan administration, believes otherwise. Regardless of the Obama administration's decision on appealing this week's court ruling, Korb stressed that the law ultimately will be repealed after the Pentagon completes its review.

"The study is not supposed to say 'whether' [to repeal], it's supposed to say 'how'," he said. "Let's not fight it any longer. Let's do it."