California Court Won't Suspend 'Don't Ask Don't Tell' Case

Jan. 29, 2011— -- A California federal appeals court has denied the government's request to suspend a lawsuit that is challenging the military's ban on openly gay service members.

The 9th U.S. Circuit Court of Appeals in San Francisco issued an order requiring the Department of Justice to file papers by Feb. 25 that outline why the court should overturn the decision of a California judge who ruled the military's "don't ask, don't tell" policy unconstitutional.

District Court Judge Virginia Phillips made the ruling to enjoin the military from enforcing the policy in September, three months before the Dec. 18 vote that overturned "Don't Ask, Don't Tell." Phillips was persuaded by a lawsuit brought on by the gay political group The Log Cabin Republicans.

Earlier this month, government lawyers asked the 9th Circuit to set aside the case, arguing that the Pentagon was moving quickly to satisfy the steps Congress outlined when it voted to allow the ban's repeal.

In the State of the Union address Tuesday, President Obama said he expected to finalize the repeal and allow openly gay Americans to join the armed forces before the end of the year.

Meanwhile, openly gay servicemen and women are still being discharged, according to R. Clarke Cooper, president of The Log Cabin Republicans. Cooper said today that while he thinks the Pentagon's efforts are sincere, the case should proceed as long as gay service members still can be discharged.

"We said all along to the government we would drop our case if they would cease all discharges and remove all barriers to open service," said Cooper, an Army reserve officer, who added that he knew of at least one service member facing a discharge hearing next month.