Now it is up to U.S. District Court Judge Virginia Phillips to decide if she is willing to do that.
The White House says the legal filing Thursday by the U.S. Department of Justice attorneys in a federal court in Riverside follows government procedure by defending an act of Congress that is being challenged, but it does not detract from the president's efforts to get 'don't ask, don't tell' repealed.
"This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT - indeed, it clearly shows why Congress must act to end this misguided policy," White House Press Secretary Robert Gibbs said in a statement e-mailed to The Associated Press.
Phillips declared the military's "don't ask, don't tell" policy unconstitutional in her ruling Sept. 9 following a three-week, non-jury trial and said she would issue a nationwide order to stop the ban. She asked both sides for input first.
The Log Cabin Republicans, the gay rights organization that filed the lawsuit to stop the ban's enforcement, wants her to issue an order that would stop the policy from being used to discharge any
Their attorney, Dan Woods, called the Department of Justice's objections to the possible injunction hypocritical. He said the administration should be seizing the opportunity to let a judge do what politics has not been able to do.
"It's sad and disappointing that the administration would file such a document days after it urged Congress to repeal 'don't ask, don't tell,'" Woods said.
In their court filing Thursday, U.S. Department of Justice attorneys argued the possible move would be "untenable" and that Phillips would be overstepping her bounds by halting a policy under debate in Congress.
Instead, she should limit any injunction to the 19,000 members of the Log Cabin Republicans, which includes current and former military personnel, the lawyers said.
"A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe," federal attorneys said in their objection.
The policy also is being challenged in a federal court in
The judge in that case was expected to issue his ruling Friday and has expressed strong doubts about government arguments seeking to have the dismissal upheld.
The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.
In her ruling, Phillips said the policy doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.