Supreme Court asked to review gay military ban

[November 06, 2010]  SAN FRANCISCO (AP) -- A Republican gay rights group on Friday asked the U.S. Supreme Court to allow a California trial judge's order barring enforcement of the "don't ask, don't tell" policy on gays in the military to go back into effect.

Lawyers for Log Cabin Republicans asked the high court to vacate a 2-1 decision Monday by the 9th U.S. Circuit Court of Appeals keeping "don't ask, don't tell" in place until it considers the government's appeal of the judge's decision declaring the policy unconstitutional.

The Log Cabin group argued that the 9th Circuit panel abused its discretion when it blocked U.S. District Judge Virginia Phillips' order requiring the armed forces to allow openly gay Americans to enlist and serve.

It said the divided panel erred in accepting the Pentagon's claim that it needed more time to develop procedures for integrating gay service members and "gave no consideration whatsoever to the injury that will befall" while "don't ask, don't tell" is in place.

"Unless the court of appeals stay is vacated, the respondents will be free to continue to investigate and discharge American service members for no reason other than their homosexuality, in violation of their due process and First Amendment rights," the group's lawyers wrote.

The request was directed to Justice Anthony Kennedy, who handles emergency motions from the 9th Circuit. Kennedy on Friday evening asked the Department of Justice to respond by 5 p.m. Wednesday.

President Barack Obama, meanwhile, has pledged to push the Senate to repeal the policy in the lame duck session before a new Congress is sworn in.

The policy was lifted for eight days last month after Phillips ruled that it violates the civil rights of gay Americans and issued an injunction barring the Pentagon from applying it. The Obama administration appealed and asked the appeals court to reinstate the ban until it could hear arguments on the broader constitutional issues next year.

"It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court," R. Clarke Cooper, the group's executive director, said.

In their filing Friday, Log Cabin's lawyers disputed that the military would be harmed if the policy were suspended immediately.

Phillips' order "does not order the military to redesign its barracks, to retool its pay scales or benefits, to reordain its chaplains, to rewrite its already extensive anti-harassment or 'dignity and respect'" rules, or anything else," they said. "The district court's injunction requires only one thing: to cease investigating and discharging servicemembers for reasons unrelated to their performance and military ability."

[Associated Press; By LISA LEFF]

Associated Press writer Mark Sherman in Washington contributed to this story.

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