msnbc.com news services
updated 10/20/2010 10:32:34 PM ET 2010-10-21T02:32:34

A federal appeals court ruled Wednesday that the Pentagon may temporarily reinstate a ban on openly gay men and women in uniform while a challenge to the "don't ask, don't tell" policy continues working its way through the judicial system.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco added to the disarray surrounding a landmark legal battle that already has forced the U.S. military to welcome openly gay recruits for the first time.

The panel instructed lawyers for the gay rights group that brought the lawsuit challenging the policy to file arguments in response to its ruling by Monday.

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The judges would decide whether to extend the temporary stay while the court considers the government's appeal of an Oct. 12 order by U.S. District Judge Virginia Phillips or Riverside, Calif., that the policy was unconstitutional.

It was unclear what effect allowing "don't ask, don't tell" to resume would have on the Pentagon, which has already informed recruiters to accept openly gay recruits and has suspended discharged proceedings for gay service members.

The 1993 "don't ask, don't tell" rule says gays may serve but only if they keep secret their sexual orientation.

Cynthia Smith, a Pentagon spokeswoman, said "for the reasons stated in the government's submission, we believe a stay is appropriate."

She declined to say whether the Defense Department would roll back its guidance to military lawyers and recruiters that they must abide by last week's injunction. It has been assumed, however, that the Pentagon would revert to its previous policy of "don't ask, don't tell" if a stay were to be granted throughout the appeals process.

Alisa Finelli, a spokesperson for the Justice Department, declined to comment Wednesday. There was no immediate comment from the White House.

The government earlier Wednesday said it wanted the 9th Circuit to take action the same day on Phillips' ruling.

The Obama administration says it is in favor of repealing the law. However, the government says that letting Phillips' ruling go forward would be a major problem for the military.

Video: Gay ex-soldier tries to re-enlist (on this page)

Phillips' order was an "extraordinary and unwarranted intrusion into military affairs," the Justice Department told the court.

Leaving the judge's decision in place now "would create tremendous uncertainty about the status of service members who may reveal their sexual orientation in reliance on the district court's decision and injunction," the Justice Department said in its latest appeals court filing.

"Effectively developing proper training and guidance with respect to a change in policy will take time and effort," the court papers added. "The district court's injunction does not permit sufficient time for such training to occur, especially for commanders and servicemembers serving in active combat."

President Barack Obama says he supports repeal of the policy, but only after careful review and an act of Congress.

A lawyer for the Log Cabin Republicans said the group was disappointed but called the appeals court's action a minor setback.

"We didn't come this far to quit now, and we expect that once the 9th Circuit has received and considered full briefing on the government's application for a stay, it will deny that application," said Dan Woods, of White & Case.

Log Cabin Republicans in court dismissed the government's argument, saying the Pentagon "has already acted nimbly" in response to the injunction by ordering military recruiters to accept gay and lesbian applicants.

"The fact that the government can and did issue such instructions and comply with the injunction immediately shows that the military will not sustain irreparable harm from compliance and belies the need for any temporary stay," the group argued in court papers.

The Log Cabin Republicans say at least 13,000 men and women have been expelled from the military since "don't ask, don't tell" went into effect.

Aaron Belkin, director of the Palm Center at the University of California Santa Barbara, said the government's arguments continue to ring hollow, The Washington Post reported.

"The whole point of the ongoing Pentagon study is how to repeal 'don't ask, don't tell'- as if we don't know how to do it," Belkin said. "But look what happened last week? The military suspended it last week with no training and guess what? Nothing happened."

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The Post said the Palm Center is a think tank that studies gays in the military and supports lifting the ban.

"You don't need to teach the troops how to interact with gays anymore than you need to train them how to deal with Jews," Belkin said. "People know how to behave with one another."

The House passed repeal legislation in January but it was stalled in the Senate by a Republican-led filibuster.

The measure would discard the law only after the Defense Department finished a study, due Dec. 1, of how the change would affect the armed forces. The Justice Department argued Wednesday that Phillips' order to immediately halt enforcement thwarts the government's "efforts to devise an orderly end to the statute," the San Francisco Chronicle said.

Reuters and The Associated Press contributed to this story.

Timeline: Timeline of 'don't ask, don't tell'

View how U.S. military policy has evolved since 1982, when the Pentagon formalized World War II-era policies banning gays.

Video: Gay ex-soldier tries to re-enlist

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