Obama Lawyers Say ‘Don’t Ask, Don’t Tell’ Ban Shouldn’t Be Enforced Yet

The Obama Administration asked a federal appeals court to keep the “Don’t Ask, Don’t Tell” policy on gays and lesbians serving in the military in place during an appeal of a ruling overturning the law.

Lawyers for the Justice Department yesterday asked the U.S. Court of Appeals in San Francisco to reverse its July 6 decision granting a request by the Log Cabin Republicans, a group that promotes equal rights for gays and lesbians, to block further enforcement of “Don’t Ask, Don’t Tell.”

The appeals court issued its order “based in part on an apparent understanding that the government is not defending the constitutionality” of the policy, Henry C. Whitaker, a Justice Department lawyer, wrote in a letter to the court yesterday. “That understanding is incorrect.”

President Barack Obama on Dec. 22 signed into law legislation lifting the 1993 policy, which prohibits gays and lesbians from serving openly in the military. The government argues that the repeal is not effective until 60 days after the president, secretary of defense and the chairman of the Joint Chiefs of Staff certify the military has prepared for it.

The Justice Department is defending the constitutionality of the law “as it presently exists,” Whitaker wrote. Though the case before the appeals court will be irrelevant once certification is complete, a “live controversy remains” about “whether it is constitutional for Congress to maintain the status quo while preparations are under way” to repeal the law, according to the letter.

‘Weeks Away’

The White House said in December that it would take months for new rules to be put in place. On July 6, Marine Colonel Dave Lapan, a Pentagon spokesman, said in an e-mail that certification of the repeal of “Don’t Ask, Don’t Tell” -- required for the law to take effect -- was just “weeks away.”

The appeals court’s July 6 order was meant to enforce a Sept. 9 ruling by U.S. District Judge Virginia Phillips in Riverside, California. She concluded that “Don’t Ask, Don’t Tell” violates constitutionally protected due process and free speech rights.

The three-judge appeals court panel noted on July 6 that the repeal of “Don’t Ask, Don’t Tell” is under way, and that the Obama administration no longer opposes court challenges to the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages for purposes of taxes, Social Security and other federal programs.

‘Orderly’ Repeal

The Justice Department, in yesterday’s request to keep the lower-court ruling on hold, said it’s asking the appeals court to “permit the orderly process for repealing” the policy to resume.

“It is sad and disappointing that the government continues to try to prevent openly gay and lesbian Americans from serving in our armed forces,” Dan Woods, a lawyer representing the Log Cabin Republicans, said in an e-mailed statement.

“While we expect to win, the government’s goal in its filing today can only be to delay the inevitable day when all Americans will be able to serve our country honorably and patriotically, regardless of their orientation,” Woods said yesterday.

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: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net

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

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