WASHINGTON – After two days of silence, the Obama administration urged a federal judge on Thursday to let the military press on with its "don't ask, don't tell" ban on gays serving openly in the military. Still, President Barack Obama insisted the policy that has divided the nation for two decades "will end on my watch."
The Pentagon said the military "will of course obey the law" and halt enforcement while the case is still in question. But gay rights advocates cautioned gay service members to avoid revealing their sexuality in the meantime.
A federal judge abruptly threw out the Clinton-era ban on Tuesday, setting in motion a legal, political and human-rights back-and-forth that put the administration on the spot just two weeks before crucial midterm elections. Obama has consistently argued against the ban, approved by Congress in 1993. But he says it is up to Congress to repeal it.
The policy, summed up as "don't ask, don't tell," refers to guidance that gay or lesbian Americans can serve in the military but not openly. Their superiors are forbidden to ask about sexual orientation, but service members can be thrown out or denied enlistment if they talk about being gay or let it be known that they engage in homosexual acts.
Obama's Justice Department asked U.S. District Judge Virginia Phillips to stay her ruling that overturned the ban while the government prepares a formal appeal. Asking the judge for a response by Monday — "given the urgency and gravity of the issues" — the government said that suddenly ending the ban would be disruptive and "irreparably harm the public interest in a strong and effective military."
Obama, challenged Thursday at a town hall meeting by a Howard University faculty member who questioned his "alleged commitment to equality for all Americans, gay and straight," said his stance has not wavered. He can't end the ban with the stroke of a pen, he said, but "we're going to end this policy."
Even as the administration was arguing to keep "don't ask, don't tell" in place for now, the Pentagon's top lawyers were telling troops that the military intends to comply with the court order lifting the ban.
Col. Dave Lapan, a Pentagon spokesman, told reporters that the Defense Department "will of course obey the law." He said any changes were effective Tuesday when the ruling was first issued.
The Pentagon would not say what would happen if the judge grants the government's request for a temporary stay. But it is assumed the military would comply with that as well, reinstating the ban
In its filing with the California judge, the Justice Department argued that repeated and sudden changes in policy regarding "don't ask, don't tell" would be "enormously disruptive and time-consuming, particularly at a time when this nation is involved in combat operations overseas."
The Obama administration also filed a one-page court notice that it is appealing the case to the 9th U.S. Circuit Court of Appeals in San Francisco.
If Phillips agrees to suspend her ruling, "justice will be delayed, but it will not be denied," said Christian Berle, deputy executive director of Log Cabin Republicans, the group that sued and won her ruling overturning the government's policy.
Berle urged Senate Majority Leader Harry Reid "to do what it takes in the lame duck session (after the Nov. 2 election) to end 'don't ask, don't tell' legislatively."
Speaking at an event sponsored by entertainment networks MTV, BET and CMT, he said, "Congress explicitly passed a law that took away the power of the executive branch to end this policy." He called on the Senate to join the House in passing legislation that would let him end the ban.
"We have, I believe, enough votes in the Senate to go ahead and remove this constraint on me," he said. He added, "Anybody should be able to serve — and they shouldn't have to lie about who they are in order to serve."
The president did not discuss his administration's response to the judge's order.
White House spokesman Robert Gibbs said the president had been "very involved" in discussions about the judge's ruling, including holding meetings with the White House counsel's office to discuss the implications.
"I don't think we're deferring to Congress," Gibbs said. "The president has been active in encouraging and imploring Congress to do the right thing and end a harmful, discriminatory, unjust law."
A person in the government familiar with the case said the White House involvement in the Justice Department's handling of the case figured in the delay in responding to the judge's order.
This person, speaking on condition of anonymity to discuss the administration's internal deliberations, said a couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling. The source said the process was now back on track.
Defense Secretary Robert Gates has warned of "enormous consequences" for troops if the court order is allowed to stand, saying the decision on whether to repeal the law should be made by Congress and not the courts.
Gates 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.
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.
"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 things.
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.
Associated Press writers Tom Raum, Ben Feller and Julie Pace in Washington, Julie Watson in San Diego, Brian Witte in Annapolis, Md., and Russ Bynum in Savannah, Ga., contributed to this report.