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Gay group asks high court to reinstate ban on 'don't ask, don't tell'

By Bill Mears, CNN Supreme Court producer
The Ninth Circuit Court of Appeals ruled that the military may continue with "don't ask, don't tell."
The Ninth Circuit Court of Appeals ruled that the military may continue with "don't ask, don't tell."
  • NEW: Supreme Court is only asked to decide on the enforcement issue
  • NEW: The request is temporary during the appeals process
  • Log Cabin Republicans are seeking a return to District court's ban on the policy
  • Justice Anthony Kennedy will review the request

(CNN) -- Lawyers for the gay group seeking a repeal of the military ban on openly gay troops serving in the military asked the Supreme Court Friday to step in and temporarily block enforcement of the controversial policy.

The Log Cabin Republicans filed an emergency request with the nation's highest court to reverse the Ninth Circuit Court of Appeal decision to allow the military to continue with "don't ask, don't tell," while the government appeals the lower court ruling that the law is unconstitutional.

The appeals court, in San Francisco, is currently debating the constitutionality of barring openly gay and lesbian members in the U.S. armed forces. Until the larger questions are decided, that court had allowed the current policy to remain in place, prompting the time-sensitive appeal to the high court. The justices are only being asked to rule on the narrow enforcement issue at this stage. They could tackle the constitutional questions after the appeals court issues its ruling.

The high court appeal-- "called an "application" -- is now in the hands of Justice Anthony Kennedy. He will likely ask his eight colleagues to help him decide and order the federal government to weigh in with its views before a decision is made.

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

U.S. District Court Judge Virginia Phillips in California in September had declared unconstitutional the military's ban on openly gay troops, and later granted an injunction barring enforcement of the policy. The Justice Department requested a stay of that ruling, which was denied by Phillips but granted by the appeals court. The appeals court later overturned the district court's injunction.

In their order, the appeals judges also noted that legislation pending before Congress to repeal the policy would render the case before them moot.

The House has passed a repeal provision, and the Senate is expected to consider it as part of a broader defense authorization bill when it returns for a lame-duck session in mid-November.

President Barack Obama wants to repeal the "don't ask, don't tell" policy and reached an agreement with Defense Secretary Robert Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, on a process that includes a military review of how to make a successful transition to openly gay and lesbian soldiers serving alongside straight colleagues. Obama, Gates and Mullen would then have to certify the repeal.

Gay rights groups say the DADT policy violates the due process and First Amendment rights of military members.

In their appeal, Log Cabin Republicans said allowing the policy to remain in effect pending appeal is unacceptable and would cause "irreparable harm."

The government presented "no evidence to support a finding that open service by gay and lesbian individuals harmed the military's interests, and because both civilian and military leaders admitted that DADT actually impairs military interests," said the appeal. "Deference to military judgment here tips the scales against a stay, rather than in favor of one."

There was no immediate response from the Justice or Defense Departments to the high court filing.

The case puts the Obama's administration in an unusual position of supporting a repeal, but filing court motions to prevent it from happening faster than planned. The legislation before Congress includes the process for repeal agreed to with Gates and Mullen.

In response to the court case, Gates recently raised the level at which gay and lesbian troops can be discharged under "don't ask, don't tell" by ordering that it only be done by the secretaries of the Army, Navy and Air Force.

In a memo written to the heads of all the military services, Gates said his action was taken in direct response to the legal uncertainty surrounding "don't ask, don't tell" law and policy.

"Effective immediately and until further notice, no military member shall be separated ... without the personal approval of the secretary of the military department concerned, in coordination with the under secretary of Defense for personnel and readiness and the general counsel of the Defense Department. These functions may not be delegated," Gates wrote.

Since Gates made the change, no service emember has been discharged, according to Pentagon spokesman Geoff Morrell.

CNN's Adam Levine and Jennifer Rizzo contributed to this report.