Moments ago, the Ninth Circuit Court of Appeals temporarily granted the government’s request to stay a federal district court’s injunction of Don’t Ask, Don’t Tell, potentially allowing the Pentagon to again ban gays and lesbians from serving openly in the armed forces. From the court:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

The ruling comes after the government announced on Tuesday that recruiters had to accept gay soldiers as it was still trying — and ultimately failed — to secure a stay from U.S. District Court Judge Virginia Phillips. It filed this request for an emergency stay at approximately 11:30 this morning. The Pentagon will likely issue another guidance to bar gay recruits from enrolling. As Metro Weekly’s Chris Geidner explains:

This is not, however, a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide — sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request — whether to issue a stay pending the outcome of the appeal.

If a stay is granted pending the appeal, though, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

Attorneys for the Log Cabin Republicans, the plaintiffs in the case, had filed their opposition to the DOJ’s stay request, noting, “Each argument that the government asserts as a basis for a stay has already been raised to the district court, which rejected them all – not cursorily, or in passing at an oral argument, but in extensive reasoned opinions at multiple stages of the proceedings below.” (H/T: Chris Geidner)

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John Aravosis points out that the Pentagon has confirmed that “no disciplinary problems or mass-resignations have been reported” since a Judge Virginia Phillips announced her injunction against enforcing the old Don’t Ask, Don’t Tell policy. The finding undermines the apocalyptic predictions of DADT supporters and the government’s concerns that lifting the ban would have “enormous consequences,” but for Nathaniel Frank – author of Unfriendly Fire — it’s to be expected.

As Frank pointed out to me in an email, “what all this reveals is a military and political leadership that’s out of touch with the reality on the ground”:

Poll after poll shows that a majority of troops already know or believe there are gays in their units, which means gays are not only serving, but serving openly. Judge Phillips also found that the military has been letting out gays go to war because of personnel needs. Let me repeat that: open gays are already there. So how can the Pentagon argue that letting open gays serve will have ‘enormous consequences’ if it’s already been happening for years?

As Frank summarizes here, poll after poll has already found that a growing number of servicemembers have no problem serving with openly gay or lesbian troops. And if the Pentagon Working Group comes to a dramatically different conclusion — “that openly gay service would be disruptive and would take many months to implement — it’s going to make the Pentagon look pretty darn silly,” Frank concluded. Their report is scheduled to be released on December 1st.

Following California District Court Judge Virginia Phillips’ official rejection of the government’s request to stay her injunction against enforcing Don’t Ask, Don’t Tell, the Department of Justice has filed an emergency stay request with the 9th Circuit Court of Appeals, requesting that “the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.”

The 25-page stay request argues, among other things, that the temporary injunction, “if not stayed immediately,” “risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.” Interestingly, DOJ lists at least three different harms, but doesn’t note a single specific instance in which the Pentagon has received a complaint about mass resignations or disruption in the time since it has complied with Philips’ order and stopped implementing the policy:

1. DADT is in the public interest: “Because an Act of Congress is deemed to be “in itself a declaration of public interest and policy which should be persuasive,”…ending “Don’t Ask, Don’t Tell” in this manner is itself irreparable harm.”

2. Military not ready for repeal: “The Court should defer to the considered judgment of Congress and the most senior leaders of the military that a repeal of § 654 and its implementing regulations should be done in an orderly manner to be successful, rather than result from an immediate court- ordered cessation of the statutory policy.”

3. The injunction is causing “confusion”: “Enjoining the operation of the statute before the appeal is concluded would create tremendous uncertainty about the status of servicemembers who may reveal their sexual orientation in reliance on the district court’s decision and injunction.”

Meanwhile, Voice of America reported yesterday that despite DOJ’s warnings, “A Pentagon spokesman said Monday that no disciplinary problems or mass-resignations have been reported since last week’s judicial injunction.”