As the administration of US President Barack Obama considers appealing a judge’s order stopping the law prohibiting gays from serving openly in the military, some officers and service members say they are uncertain how to react.
The Pentagon said on Wednesday it had not issued written guidance on the ruling and commanders in the field said they did not know how to proceed on sensitive questions, like pursuing existing investigations against gay service members.
US Secretary of Defense Robert Gates warned of “enormous consequences” for troops if the court order is allowed to stand, saying the decision to repeal the law known as “don’t ask, don’t tell” should be decided by Congress and not the courts.
He 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.
The Justice Department worked into the night on Wednesday on its response to the California judge’s ruling, but gave no indication when there would be an announcement. Its first move may be to seek a stay, or temporary freeze, of the order. If that request is rejected, the department probably would turn to the federal appeals court in California.
If the government does appeal, it would put the Obama administration in the position of continuing to defend a law it opposes.
White House press secretary Robert Gibbs said time is running out for the ban on gays serving openly.
“This is a policy that is going to end,” he said.
On Wednesday, Gates told reporters traveling with him in Europe that repeal of the “don’t ask, don’t tell” law should be considered only after the Pentagon completes a study of the impact of lifting the ban, including an assessment of service members’ attitudes toward the change. The study is due on Dec. 1.
Allowing gays to serve openly “is an action that requires careful preparation and a lot of training,” Gates said. “It has enormous -consequences for our troops.”
In Tuesday’s ruling, US District Judge Virginia Phillips in San Diego ordered the military “immediately to suspend and discontinue any investigation” or other proceeding to dismiss gay service members. The 1993 “don’t ask, don’t tell” law says gays may serve in the military, but only if they keep secret their sexual orientation.
Phillips wrote that the law “infringes the fundamental rights” of current and prospective service members.
Gay rights advocates cautioned gay service members to avoid revealing their sexuality for fear that the Phillips ruling could be tossed out on appeal and they would be left open to being discharged.
Department of Defense officials would not say what was happening to current discharge cases, or even confirm how many pending cases there might be.
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 J.D. Smith and said he is an Air Force Academy graduate.
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