‘Don’t Ask, Don’t Tell’ Judge Asks If U.S. Is Appealing Military Gay Ban

The Obama Administration was ordered to reveal whether it intends to defend the legality of “Don’t Ask Don’t Tell” and explain why an appeal of a ruling striking down the policy should not be dismissed.

A federal appeals court in San Francisco issued the order today after ruling on July 6 that the “Don’t Ask, Don’t Tell” policy on gays serving in the armed forces must immediately end. The ruling blocks enforcement of the policy, which prohibits gays and lesbians from serving openly in the military, while the court reviews a lower-court decision that the law is unconstitutional.

It appears “that the government is not prepared to defend the constitutionality” of the military’s ban on gays, the appeals court said in an order today.

President Barack Obama on Dec. 22 signed into law legislation lifting the 1993 policy. The White House said then that it would take a matter of months for new rules to be put in place. Certification of the repeal is “just weeks away,” Pentagon spokesman Marine Colonel Dave Lapan said July 6.

The Log Cabin Republicans, a group that promotes equal rights for gays and lesbians, sued to overturn the ban.

The federal appeals court said today that no party in the case has indicated an intention to defend the ban or argue that the lower-court ruling should be reversed. Other groups may be allowed to intervene in the case to defend “Don’t Ask, Don’t Tell,” the court said.

The government has 10 days to respond to the court’s order, according to the filing.

Tracy Schmaler, a Justice Department spokeswoman, didn’t immediately return a voice-mail message.

“We have said all along that the policy is unconstitutional,” said R. Clarke Cooper, executive director of the Log Cabin Republicans. The appeals court is now asking the Justice Department, “Do you concur that it’s not constitutional?” he said in a phone interview.

The case is Log Cabin Republicans v. U.S., 10-56634, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

To contact the reporter on this story: Karen Gullo in San Francisco at kgullo@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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