Justice Dept. Asks Judge to Overturn Ruling on Gay Ban

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WASHINGTON -- In a move that has already upset gay rights groups, President Obama's Justice Department has requested that U.S. District Judge Virginia Phillips allow the military to continue enforcing its Don't Ask Don't Tell policy, following her landmark ruling on Tuesday that declared the law "unconstitutional". Papers filed by the Justice Department late Thursday ask Judge Phillips to overturn her ruling by placing an emergency stay on the injunction pending a formal appeal.

This means that even if she decides not to comply, the Obama administration will fight her ruling in a higher court.

Already a number of gay advocacy groups have expressed their frustration with the administration's decision to contest the ruling.

"This request from the Obama administration asking Judge Phillips to stay her own injunction was expected, but it is nevertheless disappointing in light of the president's claim that 'Don't Ask, Don't Tell' harms national security and impairs military readiness," said Alexander Nicholson, Executive Director of Servicemembers United.

President Obama has not commented directly on the Justice Department's response to the California judge, but while speaking at a meeting of young adults in Washington D.C. on Thursday he said the military's ban on gays will end while he is in office.

But, he said, "this is not a situation where I could with the stroke of pen end this policy."

The President argued that laws have to be followed and that if the ban is overturned it should be done by Congress. Congress, of course, has already failed once this year to pass a bill that would repeal the 1993 Don't Ask Don't Tell law. However, Obama said he thinks the Senate might have the votes to try again before the end of the session.

Meanwhile, after two days of silence following the court's ruling, the Pentagon just announced it will comply with the injunction and will suspend or discontinue any investigations or proceedings related to the discharge of homosexual service members. Yet now that Justice has asked the judge to stay her injunction and signaled they'll appeal, this guidance is likely to be short lived.