NEW YORK — Elated by a major court victory, gay-rights activists are stepping up pressure on Congress to repeal the military's "don't ask, don't tell" policy this month. They want to avoid potentially lengthy appeals and fear their chances for a legislative fix will fade after Election Day.
The House voted in May to repeal the 17-year-old policy banning openly gay service members. Many majority Democrats in the Senate want to take up the matter in the remaining four weeks before the pre-election recess, but face opposition from Republican leaders.
National gay-rights groups, fearing possible Democratic losses on Nov. 2, urged their supporters Friday to flood senators' offices with phone calls and e-mails asking that the Senate vote on the measure during the week of Sept. 20.
"If we don't speak up now, our window for repeal could close," said Joe Solmonese, president of the Human Rights Campaign.
Supporters of repeal hope senators heed the ruling issued Thursday in Los Angeles by U.S. District Judge Virginia Phillips, who said 'don't ask, don't tell' was an unconstitutional violation of the due process and free speech rights of gays and lesbians.
The policy has a "direct and deleterious effect" on the military by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training, she said.
The Log Cabin Republicans, a GOP gay-rights organization, sued the federal government in 2004 to stop the policy, and Phillips said she would draft an order within a week doing just that. The U.S. Department of Justice hasn't yet said whether it will appeal the ruling; spokesman Charles Miller said attorneys were reviewing it.
Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen – both in favor of repealing "don't ask, don't tell" – say they prefer that the change wait until the military completes a review of the issue. That study, due in December, includes surveys of troops and their families to get their views and help determine how a change would be implemented.
Gay-rights activists, worried that the election could tilt the balance of power in Congress, don't want to wait.
"We're pleased by the judge's decision, but this decision is likely to be appealed and will linger for years," said Aubrey Sarvis of the Servicemembers Legal Defense Network, which has lobbied against 'don't ask, don't tell.'
The House-passed repeal measure is contained in a broader defense policy bill which has yet to be sent to the Senate floor because of an objection by Sen. John McCain, R-Ariz., during debate in the Armed Services Committee.
McCain said it was "disgraceful" to push for a vote on the repeal before completion of the Pentagon review.
Democrats, who effectively hold 59 Senate seats, will need at least some Republican support to reach the 60 votes needed to pass the bill. Republican Susan Collins of Maine voted for repeal in committee.
The Senate has a packed agenda for the next few weeks before its recess, and Republicans have warned that they might not make time for the defense bill if it contains controversial amendments. Along with the 'don't ask, don't tell' repeal, it includes a proposal that would allow female service members to receive abortions at military facilities.
Among those on the spot is Senate Majority Leader Harry Reid of Nevada, who must decide how hard to push for a vote on the repeal.
Over the summer, Reid was given the West Point ring of Lt. Dan Choi, an Iraq war veteran who was discharged from the New York Army National Guard because he was open about his homosexuality. Choi said he would take back the ring only when 'don't ask, don't tell' was repealed, and he was among many activists urging Reid to press hard for a vote.
"The time for accountability has come," Choi said Friday. "Sen. Reid needs to follow the leadership of Judge Phillips and take immediate action to support the men and women serving in our nation's military."
President Barack Obama has said he would like 'don't ask, don't tell' repealed, but wants Congress to take the lead in accomplishing that. Republicans on Friday called on the administration to defend the law until the Defense Department had a chance to complete its review.
"After making the continuous sacrifice of fighting two wars over the course of eight years, the men and women of our military deserve to be heard – and have earned that right," said California Rep. Buck McKeon, the top Republican on the House Armed Services Committee.
During the trial before Phillips, government attorneys presented only the policy's legislative history in their defense and called no witnesses.
Justice Department attorney Paul G. Freeborne argued that the issue should be decided by Congress rather than in court. He said the plaintiffs were trying to force a federal court to overstep its bounds and halt the policy as it is being debated by lawmakers.
In 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the law itself is constitutional, but the way the military applies it is not. The court said it's OK to discharge people for being gay – but only if the military proves that the dismissal furthers military readiness.
The Pentagon has ignored that ruling over the past two years, continuing to discharge gays without making such a showing.
The case before the 9th Circuit concerned former Maj. Margaret Witt, a decorated Air Force flight nurse discharged for having a long-term relationship with a civilian woman in Washington state. Witt continues to seek reinstatement, and a federal trial is scheduled to begin Monday in Tacoma over whether her firing actually furthered military goals.
Phillips' decision was the third federal court ruling since July to assert that statutory limits on the rights of gays and lesbians were unconstitutional. Earlier, federal judges ruled against California's Proposition 8, which bans same-sex marriage, and against the federal Defense of Marriage Act, which denies federal recognition to same-sex marriages even in states such as Massachusetts that allow them.
Associated Press writers Anne Flaherty and Pete Yost in Washington and Gene Johnson in Seattle contributed to this report.
(This version corrects that Witt's case went before 9th Circuit, not Phillips.)