Either way, the legal defense the administration has mounted has drawn sharp criticism from supporters of "don't ask, don't tell," some of whom have suggested the administration has been complicit in the situation that led to Phillips' injunction ending the ban on openly gay troops.
"The fact that DOJ has filed a formal notice of appeal shouldn't distract from the deeper scandal that the political appointees at DOJ have been only pretending to mount a vigorous defense of DADT while in fact operating to undermine it," wrote Ed Whelan, president of the conservative Ethics and Public Policy Center, in an online essay published on the Witherspoon Institute's Public Discourse.
"This is the president's agenda," said Elaine Donnelly, president of the Center for Military Readiness, which supports "don't ask don't tell." "I have no explanation for why they haven't more forcefully appealed. It's political. The president is determined to deliver on his campaign promise."
Even Judge Phillips noted that the government "had an opportunity to, but did not, present any of the evidence or arguments" during trial over why ending the policy would be harmful to military readiness. "They provided no evidence regarding the alleged disruption," wrote Phillips of the DOJ, in rejecting their request to stay an injunction.
It's now up to the 9th Circuit Court of Appeals to decide whether to grant the administration's request for a stay of the injunction and take up an appeal of the judgment against the law.
White House press secretary Robert Gibbs said Monday that the president would press lawmakers to approve a repeal during the lame-duck session after the November elections.