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U.S. seeks hold on gays in military ruling

The U.S. Justice Department on Thursday asked a federal court to put a hold on the judge's order this week that declared the military's "don't ask, don't tell" policy governing gays in the military unconstitutional, NBC News reported.
Robert Gates
Defense Secretary Robert Gates talks with media aboard a U.S. Military Aircraft, on Wednesday en route from Hanoi, Vietnam to Brussels Belgium. Carolyn Kaster / AP
/ Source: NBC News and news services

The U.S. Justice Department on Thursday asked a federal court to put a hold on a judge's order that declared the military's "don't ask, don't tell" policy governing gays in the military unconstitutional, NBC News reported.

Asked directly at a town hall sponsored by MTV/BET why he hasn't used the power of his office to repeal the controversial policy, President Barack Obama said he's working to end the policy, but explained it can't be done with the "stroke of a pen," and that it has to be done orderly.

"This is a not a question of whether it's ending," he told the audience. "It will end on my watch."

Obama said the administration is "moving in the direction of ending this policy," but added that he has an obligation to follow existing rules.

He re-stated his support for repeal and emphasized he's been able to get the Joint Chiefs chairman and Secretary of Defense to say they think the policy should end.

In response to a question at the forum, Obama said he didn't think being gay was a choice. "I think people are born with a certain makeup,"  he said. "We are all children of God."

In court papers requesting the hold on Thursday, Clifford Stanley, an undersecretary of Defense said "an injunction before the appeal ... will place gay and lesbian servicemembers in a position of grave uncertainty."

At issue is a California judge's ruling ordering the military to immediately suspend the "don't ask, don't tell" law that says gays may serve in the military only if they don't disclose their sexual orientation.

Obama has long opposed the policy, but says he wants Congress to repeal the law.

Meanwhile, a gay rights group told the Associated Press on Thursday that the Air Force has told its legal officers to stop enforcing "don't ask, don't tell."

The Servicemembers Legal Defense Network circulated an e-mail that it says 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.

The Air Force was unable to immediately confirm the contents of the note to the Associated Press.

Pentagon: No written guidance
The Pentagon said Wednesday it had not issued written guidance on a judge's order throwing out the ban, and commanders in the field said they did not know how to proceed on sensitive questions like pursuing existing investigations against gay service members.

The Obama administration is considering whether to appeal the judge's ruling, issued Tuesday in California.

Defense Secretary Robert Gates warned of "enormous consequences" for troops if the court order is allowed to stand, saying the decision on repeal of the law known as "don't ask, don't tell" should be decided by Congress and not the courts.

He has said he wants more time to prepare for a circumstance in which, for the first time, gay members of the military could declare their sexual orientation without fear of dismissal.

On Wednesday, 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."

In Tuesday's ruling, 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.

Gay rights advocates cautioned gay service members to avoid revealing their sexuality for fear that the Phillips ruling could be tossed out on appeal and they would be left open to being discharged.

Defense Department officials would not say what was happening to current discharge cases, or even confirm how many pending cases there might be. A Pentagon spokesman, Col. David Lapan, said no written guidance had been issued to commanders on how to deal with the court order.

An Air Force officer and co-founder of a gay service member support group called OutServe said he will continue using a pseudonym out of concern that he still could be discharged.

Hope for clarification
"Can I come out right now and be OK? And if I made a statement would it be held against me?" asked the officer, who calls himself JD Smith and said he is an Air Force Academy graduate. He said service members are hoping the Pentagon will clarify the meaning of the court ruling.

Warren Arbury of Savannah, Ga., said he'd love to re-enlist in the Army two years after being discharged in the middle of a tour in Iraq. But he's being cautious and patient.

"I think it's still way too soon," said 28-year-old Arbury, now a university student. "If I was to hear news that automatically everything would be reinstated, I'd be the first one in the door."

The uncertainty extended overseas. When asked by a reporter whether the ruling had had any impact, a two-star U.S. Army commander in eastern Afghanistan suggested he was unsure anything would change and said it was unlikely that his soldiers even knew about the court order.

"If that law is changed, they'll abide by the law," but "that's probably the farthest thing from their mind" as they fight, said Maj. Gen. John Campbell, commander of the 101st Airborne Division.

Gates, who supports lifting the ban once the Pentagon puts in place a plan for minimizing disruptions, said that besides developing new training for troops, regulations will have to be revised.

Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, face disagreement by some senior general officers on whether lifting the ban would cause serious disruption at a time when troops are fighting in Afghanistan and winding down a long war in Iraq.