Defense Secretary Robert M. Gates urged Congress not to abandon efforts to repeal the law banning homosexuals from serving openly in the armed forces, despite a Senate vote Thursday that further dimmed prospects for action this year.

Gates said he was “disappointed” but not “surprised” that the Senate failed to end a Republican filibuster against bringing up the Defense Department authorization bill, which contains language overturning the 17-year-old “don’t ask, don’t tell” statute.

“I would hope that Congress would act to repeal the don’t ask, don’t tell law” he told reporters on his plane heading back to Washington after a weeklong trip to the Middle East and Afghanistan.

But with Congress likely to remain in session for only a week or so longer, repeal of the law looks increasingly doomed this year, and with Republicans due to take control of the House in January and increase their number in the Senate, it may not happen next year either.


Gates reiterated his concern that if Congress does not take action, the courts could overturn the law, forcing the Pentagon to allow gays and lesbians to serve without any time to prepare for such far-reaching change.

“My greatest worry will be that we are at the mercy of the courts and all of the lack of predictability that that entails,” Gates said.

A federal district court judge in Riverside declared the ban on homosexual service unconstitutional in October, but her decision was stayed while the Justice Department pursues an appeal. A decision on that appeal is expected next spring. There are other cases moving through the courts that could also affect implementation of the law.

Supporters of don’t ask, don’t tell say allowing gays and lesbians to serve openly would disrupt the military. But last month a Pentagon study concluded that risk was low as long as the Defense Department had time to train its personnel in how to implement the change.


The repeal provision under consideration in Congress would overturn the law but delay the effective date until the president, defense secretary, and chairman of the joint chiefs certify that doing so would not impair military readiness.

Despite the uncertainty about the law’s future, Gates said it would be a mistake to begin preparing now for the day when it is repealed.

“I think it would be a serious mistake to start training and preparing before the law is changed because I think it will just confuse the troops,” he said. “What is the law and what’s not the law if you are being trained to go in both directions?”

Gates has argued repeatedly that the possibility the courts could overturn the law makes congressional action imperative.


Sen. Carl Levin, D-Mich, the Armed Services Committee chairman, said that in the wake of the failure to end the filibuster, he would explore whether it is possible to move a stand-alone bill repealing don’t ask, don’t tell before the end of the year.

Sens. Joseph Lieberman, D-Conn., and Susan Collins, R- Maine, are spearheading an effort to pass such a bill in the next week, but its prospects are uncertain.

“It is time for this discriminatory policy to end, and I am in favor of any legislative path that would lead to this result,” Levin said.