SAN DIEGO ? A move by the Obama administration to temporarily reinstate the military's "don't ask, don't tell" stance on gay service members is prolonging the court battle over eliminating the policy that all sides have agreed will end this year.
Critics said Friday the administration's request for an appeals court to resurrect the ban is unnecessary and would only hurt gay and lesbian troops by restarting investigations of service members targeted by the policy.
They also claimed politics is behind the effort to continue the policy that a lower court has found unconstitutional and Congress has approved repealing.
"It's inexplicable why the Obama administration has taken this position," said Erwin Chemerinsky, dean of the University of California at Irvine law school and a constitutional law expert.
"The courts have given the Obama administration exactly what it wanted ? an end to `don't ask, don't tell,'" he said.
The U.S. 9th Circuit Court of Appeals halted the policy July 6, but the Department of Justice filed an emergency motion Thursday asking the court to reconsider its order, saying ending the policy now would pre-empt the "orderly process" for rolling it back as outlined in the law passed and signed by President Barack Obama in December.
The Department of Justice said in a statement that it asked the court to reconsider its order "to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal."
It said senior military leaders are expected to make their decision on certifying repeal within the next few weeks. In the meantime, the Justice Department said "it remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline."
The Justice Department noted that the Defense Department has discharged only one service member since Congress voted to repeal the policy, and that was done at the request of the service member.
The Justice Department urged the appeals court to issue a decision by the end of Friday.
Last year's ruling by the appeals court stemmed from a lawsuit filed by the Log Cabin Republicans against the Department of Justice.
The gay rights group persuaded U.S. District Court Judge Virginia Phillips to impose a worldwide injunction halting the ban last October, but the appeals court granted the government a stay, saying it wanted to give the military time to implement such a historical change.
The Log Cabin Republicans asked the court Friday to deny the motion, saying "an on-again, off-again status of the District Court's injunction benefits no-one and plays havoc with the constitutional rights of American service members."
The plaintiff said while only one service member has been discharged since the congressional vote, three others have been approved for discharge by the secretary of the Air Force but the processing of those actions have been "stopped in their tracks" by the court's order. Granting the stay the government wants would allow it to act on those discharges and also allow it to put recent applicants from gay enlistees in limbo, the group said.
Justice Department attorneys said in their motion Thursday the grounds for keeping the stay in place are even stronger today than they were when this court initially entered the stay, and that disrupting the process set out by Congress would impose "significant immediate harms on the government."
The chiefs of the military services submitted their recommendations on the repeal to Defense Secretary Leon Panetta last week. As soon as the Pentagon certifies that repealing the ban will have no effect on military readiness, the military has 60 days to implement the repeal, which could happen by September.
Gay rights organizations say they are disappointed the government doesn't just let the courts end it now.
"We are frustrated by this last-minute filing, which could well add more delay and confusion for service members," said Army veteran Aubrey Sarvis, director of Servicemembers Legal Defense Network, which represents gay troops and veterans. "This development only serves to underscore the need for immediate certification and finality."
Lt. Col. Paul Hackett, a lawyer in the Marine Corps Reserve, said military officials are ready for the change and there is no need for a delay.
"We're already taking steps to implement it," he said. "Politicians do what politicians do for whatever their political need is. It's an election year, so somebody is obviously taken that into consideration. I suspect that's what driving this."
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Associated Press writer Pete Yost in Washington contributed to this report.
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