The Obama administration on Wednesday
urged the Supreme Court not to interrupt enforcement of “Don't Ask,
Don't Tell,” the law that bans gay and bisexual troops from serving
openly, while it appeals a lower court's ruling that found the
policy to be unconstitutional.
The filing comes in response to an
application made last week by a gay GOP group challenging the
military ban. Lawyers for the Log Cabin Republicans have asked the
court to reinstate a lower court's order against enforcement of the
The government argued that forcing the
military to halt the policy at a time of war would create problems.
“The military should not be required
to suddenly and immediately restructure a major personnel policy that
has been in place for years, particularly during a time when the
nation is involved in combat operations overseas,” Clifford L.
Stanley, the under secretary of defense for personnel readiness,
wrote in a supporting document.
In their plea, lawyers for the Log
Cabin Republicans argue that the Ninth U.S. Circuit Court of Appeals
erred when it granted the Obama administration a permanent hold on a
trial judge's order to stop enforcing “Don't Ask, Don't Tell”
while the government prepares an appeal to U.S.
District Judge Virginia Phillips' September ruling striking down
the law as unconstitutional and subsequent injunction against its
enforcement. The injunction was in place for 8 days before the same
court set aside the order temporarily.
The Supreme Court is only being asked
to consider enforcement of the policy as an appeal moves forward.
The gay GOP group will have an opportunity to respond to the
government's filing before the court rules.
President Barack Obama has pledged to
repeal the law that has ended the military careers of over 13,000
service members, but says he would prefer a legislative solution and
has urged Congress to act. Backers of repeal are lobbying senators
to take a second look at repeal during the upcoming lame-duck session
that begins Monday. But
recent GOP gains appear to have emboldened Republican senators who
Log Cabin lawyers in their filing
argued that the Ninth Circuit's order “was an abuse of discretion.”
“It ignored controlling precedent,
including Lawrence (Lawrence v. Texas). It sidestepped
the requirement that respondents show a likelihood of success on the
merits, a showing they failed to make. It gave no consideration
whatsoever to the injury that will befall the applicant from a stay.
And it applied the wrong standard to respondent's claim of
irreparable injury, which rested entirely on speculation, by
accepting as sufficient the respondents' 'colorable' assertions of
harm and injury, rather than requiring them to show a 'likelihood' of
irreparable injury as this Court's precedents dictate.”