The federal government is asking the U.S. Supreme Court to stand behind the ruling of the 9th U.S. Circuit Court of Appeals allowing the military to continue using the ‘don’t ask, don’t tell’ policy.

The policy has been in place for years and bans openly gay and lesbian soldiers from serving in the military. In September the policy was declared unconstitutional by U.S. District Judge Virginia Phillips. Phillips then granted an injunction that barred the military from enforcing the policy any longer.

The Justice Department requested a stay of the ruling and Phillips denied it. The 9th U.S. Circuit Court of Appeals granted the stay and overturned the injunction while the decision is being appealed.

Last week, lawyers for the gay rights group the Log Cabin Republicans filed an emergency request with the Supreme Court to revert the decision of the appeals court to continue the policy during the appeal process.

Clifford L. Stanley, under secretary of defense for personnel and readiness, has said that if the courts force the military to halt the policy during this appeals process it will cause problems in a time of war.

The situation has placed the Obama administration in a tricky position. The administration backs the repeal of the policy and has led efforts to agree to a repeal process among leaders. However, they now have to continue pushing the courts to halt that repeal to prevent it from happening sooner than it should.