The Obama administration on Thursday appealed a federal court ruling that found “don’t ask, don’t tell” to be unconstitutional and asked that the military policy barring openly gay service members stay in effect pending a higher court’s review.

The Senate may get the next crack at the policy when it reconvenes after the Nov. 2 elections.

The Justice Department’s appeal comes two days after U.S. District Judge Virginia A. Phillips ordered the Defense Department to “immediately” suspend enforcement of the policy on the grounds that it “infringes the fundamental rights” of service members.

Defense and Justice officials have been wrestling with how to respond to the ruling, which has left gay and lesbian military personnel in legal limbo. The administration’s decision to appeal is already drawing fire from gay rights groups that are holding Obama to his promise to end the law this year.

“It is clear there is confusion, and this interim period is dangerous for service members. Our service members need finality,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network. “Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

The Senate is poised to take up a Defense authorization bill in the lame-duck session that includes a “don’t ask, don’t tell” repeal. Earlier Thursday, White House spokesman Robert Gibbs said legislative action is “the best and most durable way” to ensure a repeal. He also dismissed the idea that President Barack Obama is taking a backseat on the issue by leaving it to Congress.

“I don’t think we’re deferring to Congress,” he said during a briefing. “The president has been active in encouraging and imploring Congress to do the right thing.”

Gibbs signaled that Obama will reach out to Senators during the lame-duck session to help pass the bill. “The time for the end of this policy has come and … it will end quite soon,” he said.

A senior Senate Democratic aide said the Defense authorization bill is on track to come up in the lame-duck session with the repeal included. But its fate will depend largely on the outcome of the midterm elections, the aide added, because “too much is politically uncertain” in terms of who will return in 2011. That uncertainty applies to Senate Majority Leader Harry Reid (D-Nev.), who is running neck and neck with his GOP challenger, Sharron Angle.

“A lot of decisions about strategy are going to be made between 10 p.m. on Nov. 2 and 8 a.m. on Nov. 3,” the aide said.