WASHINGTON - A gay rights group says the Air Force has told its legal officers to stop enforcing "don't ask, don't tell" because of a judge's ruling Tuesday. But the order to halt discharges could end soon.
The Obama administration will ask the judge to allow the ban on homosexual servicemen and women to continue in force pending an appeal to reverse the ruling, according to a person familiar with the discussions.
Lawyer Dan Woods said his client, Log Cabin Republicans, which won the "don't ask, don't tell" ruling on Tuesday, has been notified that the Justice Department "will appeal and seek a stay" in the case later Thursday. That word was confirmed by the person in the government knowledgeable about the administration's discussions.
The government source said the delay in responding to the judge's order resulted because the Obama White House weighed in on the Justice Department's handling of the case.
This person, speaking on condition of anonymity to discuss the administration's internal deliberations, said a couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling.
The source said the process was back on track and that court papers seeking the stay will be filed.
On Tuesday, U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military "immediately to suspend and discontinue any investigation" or other proceeding to dismiss gay service members. The 1993 "don't ask, don't tell" law says gays may serve in the military but only if they keep secret their sexual orientation.
Phillips wrote that the law "infringes the fundamental rights" of current and prospective service members.
The administration's decision to appeal the "don't ask, don't tell" ruling comes just one day after it filed an appeal against a separate judges ruling that part of the Defense Of Marriage Act is "unconstitutional" because it withholds health and retirement benefits for the spouses of federal employees in same-sex marriages.
Before news that Department of Justice would appeal Phillips' ruling, the Servicemembers Legal Defense Network circulated an e-mail on Thursday that it said was written by the Air Force's Judge Advocate General Richard Harding. In that e-mail, Harding says the Defense Department "will abide" by a court order that says the military can no longer discharge service members who are openly gay.
Such guidance would represent the first time in decades that the military would not discriminate based on sexual orientation.
White House Press Secretary Robert Gibbs said Wednesday that "don't ask, don't tell" is "going to end" -- it's just a matter of how.
On Wednesday, Defense Secretary Robert Gates told reporters traveling with him in Europe that repeal of the "don't ask, don't tell" law should be considered only after the Pentagon completes a study of the impact of lifting the ban, including an assessment of service members' attitudes toward the change. The study is due Dec. 1.
Allowing gays to serve openly "is an action that requires careful preparation and a lot of training," Gates said. "It has enormous consequences for our troops."