The Obama administration's choice to appeal Judge Phillips' ruling, and especially to request a stay of her injunction, deeply disappointed gay rights supporters.

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Perhaps as a sop to the outcry against the decision to appeal the ruling, Secretary of Defense Gates announced that subsequently no discharges could take place without the approval of the Secretaries of the branches. He said that the change in protocol was not an attempt to stop the discharges, but it is telling that the first month following this change was the first month since the adoption of DADT that there was not a single discharge under the policy, and subsequently the few known discharges were at the request of the servicemembers.

Although the administration continued to insist that it was in favor of repealing the policy legislatively, its sincerity was called into question by its eagerness to appeal decisions that effectively dismantled the discriminatory law.

Moreover, since the administration was unable to pass legislation repealing DADT during a Congress in which it had very large majorities, it seemed far-fetched to think that they could do so in a Congress in which there would be far fewer Democrats, as is the case in the Congress that was elected on November 2, 2010 and that took office on January 1, 2011.

Lame-Duck Hearings and Legislative Repeal

The question of repeal during the lame-duck session (i.e., the session after the November elections, but before the new Congress convened in January 2011) became urgent because it was widely believed that if DADT were not repealed in it, it could not be repealed during the next two years when Republicans control the House of Representatives and have a larger minority in the Senate.

On November 30, 2010, 17 years to the day after President Clinton signed the Don't Ask, Don't Tell Act, the long-awaited study that Secretary Gates demanded was released. Costing about $9 million, the 362-page report concluded that a large majority of troops were comfortable with overturning restrictions on gay men and lesbians in uniform and that they expected it would have little or no effect on their units.

On December 2 and 3, the Senate Armed Services Committee again held hearings on the policy. Secretary Gates and Admiral Mullen again indicated their support for repeal, especially since they feared that the policy would be overturned by the courts abruptly, giving them little time to prepare for the repeal.

Two of the service chiefs were less enthusiastic about repeal, though they all said that were the law changed they would implement the new policy.

Although Senator Joseph Lieberman announced that there were 60 senators in favor of repealing DADT, it was still unclear whether there were sufficient votes in the Senate to defeat a filibuster led by Senator McCain.

On December 9, 2010, an attempt to invoke cloture in order to debate the Defense Authorization bill, which contained the DADT repeal as an amendment, was again defeated, on a 57-40 vote, with Senator Susan Collins the sole Republican voting in favor of cloture and Senator Joe Manchin the sole Democrat voting against cloture.

After the defeat, Senators Lieberman, Mark Udall, and Collins announced that they would introduce a stand-alone bill to repeal DADT. Subsequently, Representatives Patrick Murphy and Steny Hoyer introduced a companion bill in the House.