The Obama administration on Friday asked [brief, PDF] the US Court of Appeals for the Ninth Circuit [official website] to delay its review of an order striking down the military's "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive] because the policy will soon be ended. In December, President Barack Obama signed legislation that would repeal DADT [JURIST report] as soon as the president, secretary of defense and chairman of the Joint Chiefs of Staff certify that the necessary policies and procedures are in place within the military to implement the repeal. After receiving certification, the full repeal must take effect within 60 days. Due to this, the US Department of Justice (DOJ) [official website] filed the brief requesting that the US Department of Defense (DOD) [official website] be granted more time to train the troops and take further measures outlined by Congress before the court officially rules on the case. The DOJ argued that an immediate decision would be premature:
This case will become moot upon the effective date of the repeal of § 654, rendering any judicial disposition unnecessary. That date is swiftly approaching. As a result, the Court should withhold further proceedings and decision in this matter, both out of the respect owed to the orderly repeal process undertaken by the political branches and in furtherance of the policy favoring avoidance of deciding constitutional questions unnecessarily.The DOJ attorneys argued that, should the court reach a decision before the repeal process is complete, the court should reverse the district court decision [JURIST report] because the plaintiff lacks standing and the district court exceeded its remedial authority.
The Obama administration had sought a delay in the briefing schedule [JURIST report] in January shortly after Congress passed the Don't Ask Don't Tell Repeal Act of 2010 [materials]. In December, three former service members discharged under DADT filed a complaint against the DOD seeking reinstatement [JURIST report] and the declaration that their discharges under the statute, and the statute itself, are unconstitutional. In November, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. The policy was struck down by a federal judge in September, but the Ninth Circuit has since stayed that ruling [JURIST report]. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.