Last week, the Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. In the appeal notice that accompanied the stay request, the government argued that ending enforcement of the policy “before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty.” “If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction,” the government wrote. “Such an injunction therefore should not be entered before appellate review has been completed.” Meanwhile, the Department of Defense has also issued new orders via email late Thursday afternoon “informing all five branches of the military that they must comply with an injunction ordered by a federal judge” until the judge grants the government’s request. The Pentagon warned gay and lesbian servicemembers against changing their behavior in the interim. “We note for servicemembers that altering their personal conduct in this legally uncertain environment may have adverse consequences for themselves or others should the court’s decision be reversed,” Under Secretary of Defense for personnel and readiness Clifford Stanley wrote on Thursday.

FRUSTRATION OVER APPEAL: DOJ‘s appeal of the decision comes after intense lobbying from House and Senate Democrats — including House Speaker Nancy Pelosi (D-CA) — to allow the recent ruling to stand. As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.” President Obama has previously implied that DADT is constitutional and Republicans and two Democrats successfully filibustered repeal in the Senate (the measure passed the House in May). But Obama has consistently argued that he would continue to try to repeal DADT through the legislative process to accommodate the work of the Pentagon’s ongoing review. “I don’t think it’s too much to ask, to say ‘Let’s do this in an orderly way’ — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy,” Obama told Rolling Stone magazine in late September. The appeal comes a day after Secretary of Defense Robert Gates warned that ending the ban is “an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training.” “It has enormous consequences for our troops,” Gates said, ignoring research by the Center for American Progress’ Larry Korb, Sean Duggan, and Laura Conley which has found that repeal is actually a simple process and has been completed without incident by many other countries, including some of our closest allies.

MILITARY RESISTANT TO CHANGE: Gates, along with other military leaders, has resisted and delayed changing the policy before the Pentagon releases its review of the ban during the first week of December. Following Gates’ remarks, The Palm Center established a website to track his prediction that the court’s decision to suspend the policy would have “enormous consequences,” including all reported instances of harm to unit cohesion, discipline and privacy that have arisen during this period of open gay service. “Now that the ban has been suspended, we are searching vigilantly for such consequences, and we will use the new web site as a hub for reporting what we find,” Palm Center Director Aaron Belkin said. Last week, the group also submitted a Freedom of Information Act request for all documentation of reported negative consequences of the suspension of DADT. Meanwhile, the Pentagon task force that has been studying the consequences of ending the policy, is “well along” in formulating its recommendations, and officials don’t expect ruling or the moratorium to affect its work. According to some military officials, “[t]he task force found deep resistance to the idea of repealing the law in some elements of the armed services, especially within the combat units, an officer familiar with the findings said. But the surveys also have found segments of the military who were not overly worried about allowing gays and lesbians to serve.”

ENDING THE BAN THROUGH CONGRESS: During an MTV/BET/CMT sponsored town hall on Thursday, Obama told young voters that the policy should be repealed by Congress, not through an executive order or the courts. Distinguishing himself from President Harry Truman — who desegregated the armed forces via executive order in 1948 — Obama explained that “the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end a policy.” Obama stressed that he’s been able to convince Gates and Joint Chiefs of Staff Chairman Mike Mullen to support repeal and promised that the policy would end “on my watch.” “But I do have an obligation to make sure that I’m following some of the rules,” Obama said. “I can’t simply ignore laws that are out there, I’ve got to work to make sure that they are changed.” On Thursday, White House Press Secretary Robert Gibbs promised that Obama would work to end the policy during the lame duck session of Congress, telling the Advocate’s Kerry Eleveld that the President would be “actively involved in that.” Obama should also suspend discharges using his stop loss authority, thus ending the discharges of qualified men and women during wartime.