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9th Circuit Keeps ‘Don’t|Ask Don’t Tell’ in Place

SAN FRANCISCO (CN) - The 9th Circuit voted 2-1 Monday to allow the U.S. military's "Don't Ask, Don't Tell" policy to remain in effect until at least March, when the court will hear oral arguments in the case.

Its order permits the military to continue to discharge openly gay and lesbian soldiers, pending the outcome of an appeal by Log Cabin Republicans, the law's opponents.

The ruling extends an earlier order temporarily staying a September injunction by U.S. District Judge Virginia Phillips, in which she banned enforcement of the 1993 law.

In Monday's ruling, Judges Diarmuid O'Scannlain and Stephen Trott concluded that "the government's colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military-if that is what is to happen-strongly militates in favor of a stay."

Judge William Fletcher dissented, writing, "I would stay the district court's order in all respects except one: I would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to Don't Ask Don't Tell policy, during the pendency of the appeal. Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices."

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