In their eight page long order, the appellate judges accepted the argument in the government's brief that Judge Phillips' worldwide injunction against the policy "will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change."
"The public interest in enduring orderly change of this magnitude in the military -- if that is what is to happen -- strongly militates in favor of a stay," Judges Diarmuid F. O'Scannlain and Stephen S. Trott wrote; "Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot."
In his dissenting opinion, Judge William Fletcher indicated that he had preferred the panel had heard oral arguments before granting the stay. Fletcher writes he would have prevented "don't tell, don't tell" from being applied to discharge any existing service members while the case was on 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," He wrote.
In a press release immediately after the ruling was publicised, Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network said;
"We continue to warn service members that it is unsafe to come out as long as this law remains on the books."
This decision by the 9th Circuit leaves the policy intact giving Gay & Lesbian servicemembers no choice but to remain silent as disclosure of their sexuality would mean that they would face investigation and discharge. Additionally, those Gay & Lesbians wanting to enlist or serve are still barred.
The court ordered the Justice Department to submit its brief in its broader appeal by Jan. 24 and gave the plaintiff's, the Log Cabin Republicans until Feb. 22 to reply. The court not schedule oral arguments in the case.
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