The Obama administration said the U.S. Supreme Court should let the military continue to bar openly gay people under the “don’t ask, don’t tell” policy, arguing that a change in the law should come from Congress, not the courts.
Acting U.S. Solicitor General Neal Katyal, the administration’s top courtroom lawyer, today urged the justices not to reinstate a federal judge’s order that had temporarily suspended the law.
U.S. District Judge Virginia A. Phillips declared the law unconstitutional in September, and a Republican gay-rights group is seeking to put that ruling into effect immediately. A federal appeals court put Phillips’s order on hold.
“It was entirely appropriate for the court of appeals to defer to the considered judgment of senior military leaders that any change in policy must be done in an orderly and careful manner in order to be successful,” Katyal argued in papers filed in Washington.
In asking the Supreme Court to lift the ban while the litigation goes forward, the Log Cabin Republicans said the government “presented no evidence to support a finding that open service by gay and lesbian individuals harmed the military’s interests.”
Efforts to overturn the don’t ask, don’t tell policy have been repeatedly thwarted. Although the House in May approved lifting the ban, Senate Democrats haven’t mustered enough support to bring repeal legislation to a vote. Opponents of the ban are now trying to include a repeal as part of a defense bill the Senate will consider in the lame-duck session that starts next week.
Obama reiterated the day after the Nov. 2 election that he wants to end the gay ban. Even so, his administration has fought against a court-ordered repeal, saying the military needed time to put a new policy in place. The Defense Department is scheduled to complete a study of the issue by Dec. 1.
The case is Log Cabin Republicans v. United States, 10A465.