A federal judge refused today to suspend her ruling that barred the implementation of the "don't ask, don't tell" policy, which forbids openly gay troops from serving in the military.
The Obama administration will now most likely ask the 9th Circuit Court of Appeals to stay U.S. District Judge Virginia Phillips' ruling. The administration has argued that it disagrees with the policy, but that it should be repealed legislatively and not through the courts.
The legal wrangling is infuriating parties on both sides of the political spectrum, with some wondering whether the administration's choice to defend the policy in court, while at the same time moving at deliberate speed to repeal it in Congress, is causing grave uncertainty for troops currently serving.
As of now, "don't ask, don't tell" is not in effect because of the judge's ruling of Oct. 13. But if the administration is granted its request for a stay from the appeals court, the policy will be reinstated.
"Removing and then reinstating DADT will be extremely disruptive, as well as unduly costly and time-consuming, particularly at a time when this Nation is involved in combat operations overseas," Clifford L. Stanley, a senior policy advisor to the Secretary of Defense, wrote in court papers.
Gay activist groups also say they worry about the impact on the troops.
"It is really confusing and also heartbreaking for these service members who continue to put themselves in harm's way in service to their country," said Michael Cole of the Human Rights Campaign.
"Instead of the policy being repealed we've gone through seemingly endless legal wrangling and legislative posturing that has not served our national security interests," he said.
Cole said he hopes the issue will be addressed when Congress returns.
Christian Berle of the Log Cabin Republicans, a gay rights group that brought the case to Court, wants the administration to abide by the judge's ruling.
"We had hoped that if President Obama truly believed that 'don't ask, don't tell' is wrong, particularly because it violates the First and Fifth amendments, that he would use Judge Phillips' ruling as a means to end the policy," Berle said.
Meanwhile, some conservatives have criticized Phillips' ruling, saying that one federal district court judge should not have the power to bring an immediate worldwide halt to the policy.
"Judge Virginia A. Phillips's brazen and error-strewn ruling in Log Cabin Republicans v. United States provides a useful case study of the all-too-familiar phenomenon of liberal judicial activism -- in brief, the wrongful judicial overriding of a democratic enactment in order to advance the agenda of the Left," Ed Whelan of the National Review wrote.
Whelan said the government was duty-bound to defend the law, but said he believes it did so only half-heartedly in order to buy time before the Department of Defense could determine how to repeal the policy in an orderly fashion.
"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," Whelan wrote in an online essay published on the Witherspoon Institute's Public Discourse.
For now, gay activists warn troops currently serving to act as if the policy were still in play until the legal wrangling is over.