RIVERSIDE, Calif. (AP) — A federal judge has denied a government request to delay her order halting the military from enforcing its ban on openly gay troops.
U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.
Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.
The military has promised to abide by her order as long as it remains in place.
Phillips declared the "don't ask, don't tell" policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members' sexual orientation and punish them for it as long as they keep it to themselves.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.
SAN DIEGO (AP) — The military is accepting openly gay recruits for the first time in the nation's history, even as it tries in the courts to slow the movement to abolish its "don't ask, don't tell" policy.
At least two service members discharged for being gay began the process to re-enlist after the Pentagon's Tuesday announcement.
Meanwhile, a federal judge in California who overturned the 17-year policy last week was likely to reject the government's latest effort to halt her order telling the military to stop enforcing the law. Government lawyers will likely appeal.
With the recruiting announcement, the barriers built by an institution long resistant and sometimes hostile to gays had come down. The movement to overturn the 1993 Clinton-era law gained speed when President Barack Obama campaigned on its repeal. The effort stalled in Congress this fall, and found new life last month when U.S. District Judge Virginia Phillips declared it unconstitutional.
"Gay people have been fighting for equality in the military since the 1960s," said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara. "It took a lot to get to this day."
The Defense Department has said it would comply with Phillips' order and had frozen any discharge cases. Pentagon spokeswoman Cynthia Smith said recruiters had been given top-level guidance to accept applicants who say they are gay.
AP interviews found some recruiters following the order and others saying they had not heard of the announcement.
Recruiters also have been told to inform potential recruits that the moratorium on enforcement of the policy could be reversed at any time, if the ruling is appealed or the court grants a stay, she said.
Gay rights groups were continuing to tell service members to avoid revealing that they are gay, fearing they could find themselves in trouble should the law be reinstated.
"What people aren't really getting is that the discretion and caution that gay troops are showing now is exactly the same standard of conduct that they will adhere to when the ban is lifted permanently," Belkin said. "Yes, a few will try to become celebrities."
An Air Force officer and co-founder of a gay service member support group called OutServe said financial considerations are playing a big role in gay service members staying quiet.
"The military has financially trapped us," he said, noting that he could owe the military about $200,000 if he were to be dismissed.
The officer, who asked not to be identified for fear of being discharged, said he's hearing increasingly about heterosexual service members approaching gay colleagues and telling them they can come out now.
He also said more gay service members are coming out to their peers who are friends, while keeping it secret from leadership. He said he has come out to two peers in the last few days.
An opponent of the judge's ruling said confusion that has come up is exactly what Pentagon officials feared and shows the need for her to immediately freeze her order while the government appeals.
"It's only logical that a stay should be granted to avoid the confusion that is already occurring with reports that the Pentagon is telling recruiters to begin accepting homosexual applicants," said Tony Perkins, the president of the Family Research Council, a conservative advocacy group based in Washington that supports the policy.
The uncertain status of the law has caused much confusion within an institution that has historically discriminated against gays.
Before the 1993 law, the military banned gays entirely and declared them incompatible with military service. There have been instances in which gays have served, with the knowledge of their colleagues.
Twenty-nine nations, including Israel, Canada, Germany and Sweden, allow openly gay troops, according to the Log Cabin Republicans, a gay rights group and plaintiff in the lawsuit before Phillips.
The Pentagon guidance to recruiters comes after Dan Woods, the group's attorney, sent a letter last week warning the Justice Department that Army recruiters who turned away Omar Lopez in Austin, Texas may have caused the government to violate Phillips' injunction. Woods wrote that the government could be subject to a citation for contempt.
The White House has insisted their actions in court do not diminish Obama's efforts to repeal the ban.
In their stay request, government lawyers argue Phillips' order would be disruptive to troops serving at a time of war. They say the military needs time to prepare new regulations and train and educate service members about the change.
Phillips has said her order does not prohibit the Pentagon from implementing those measures.
Douglas Smith, spokesman for U.S. Army Recruiting Command based at Fort Knox, Ky., said even before the ruling recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.
"If they were to self-admit that they are gay and want to enlist, we will process them," Smith said, adding that the enlistment process takes time. "U.S. Army Recruiting Command is going to follow the law, whatever the law is," he said.
The message, however, had not reached some recruiting stations.
In Pensacola, Fla., Marine Sgt. Timothy Chandler said he had been given no direction. "As far as we are concerned everything is the same. The policy hasn't changed," he said, as others in the office nodded.
Chandler said no one had come to the small office questioning the policy or asking about being openly gay and serving.
Recruiters at the Navy office next door referred all media questions to the Pentagon. Air Force recruiters said they were not authorized to talk to the media. Army recruiters referred questions to another office in Mobile, Ala.
In New York's Times Square, Dan Choi, a 29-year-old Iraq War veteran who was discharged for being gay, began the process to enlist in the Army.
In San Diego, Will Rodriguez, a former Marine who was discharged under the policy in 2008, gave his contact information to recruiters. He said they told him there were no slots for troops of his category but they promised to call him in January when more may become available.
Phillips said at a hearing Monday that she was leaning toward denying the Obama administration's request to delay her order. That would send the case to the 9th Circuit Court of Appeals in San Francisco.
After Phillips' ruling last week, Lopez — discharged from the Navy in 2006 after admitting he was gay to his military doctor — walked into an Army recruiting office in Austin and asked if he could re-enlist.
He said he was up front, even showing the recruiters his Navy discharge papers. But they told him he couldn't re-enlist because they had not gotten word from the Pentagon to allow openly gay recruits.
The Pentagon spokeswoman was unable to confirm the account. She said guidance on gay applicants had been issued to recruiting commands on Oct. 15.
On Tuesday, upon hearing of the changes to recruiting, Lopez said, "Oh, my God! I've been waiting for this for four years."
Lopez said he'll try again Friday and will go to a Navy recruiting office in Austin to see if he can enroll in ROTC as an officer. He is currently studying hospitality services at a college.
"I'm really hoping they can accept me," he said.
Flaherty reported from Washington. Associated Press writers Kristin M. Hall in Nashville, Tenn., Lisa Leff in San Francisco, Melissa R. Nelson in Pensacola, Fla., Verena Dobnik in New York, Ed White in Detroit, John Milburn in Topeka, Kan., and Brian Witte in Annapolis, Md., contributed to this report.
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