The Obama administration on Thursday asked [plea text, PDF] the US Court of Appeals for the Ninth Circuit [official website] to reinstate the "Don't Ask Don't Tell" (DADT) [10 USC § 654 text; JURIST news archive] policy that bars gays and lesbians from serving openly in the military. The government filed the "emergency motion," arguing that a Ninth Circuit panel's decision to lift a stay [JURIST report] blocking a lower court injunction against DADT and allowing for an immediate end to enforcement of the controversial policy was misguided. The motion asserts that Congress has already established a plan to repeal DADT, though it currently remains in effect. The appeals court on Monday ordered [JURIST report] the Obama administration to say whether it plans to defend DADT, suggesting that it appeared from the merit briefs in Log Cabin Republicans v. USA [case materials] that the government was not prepared to defend the law's constitutionality because it has asserted only that the Don't Ask, Don't Tell Repeal Act of 2010 [text and materials] is constitutional. Included in the government's filings was a letter [text, PDF] from US attorney Henry Whitaker responding to questions presented in the appeal court's July 11 order, namely, whether the Obama administration intended to defend DADT's constitutionality. Whitaker explained that the administration "has fully defended, and continues to defend, the constitutionality" of DADT "as it exists following the enactment of" the Repeal Act:
[B]efore enactment of the Repeal Act, the question this case presented ... was whether 10 U.S.C. § 654 was constitutional as originally enacted. But that is no longer the question in this case, in which the plaintiff seeks only prospective relief. The government has not addressed the question the district court decided because the statute the district court considered has been changed, fundamentally altering the legal lens through which a Court must evaluate the constitutionality of the statute. Rather, the government has addressed the only question as to which there is any live controversy remaining: whether the statute as it presently exists is constitutional.The government also filed a declaration [text, PDF] from top Pentagon official Major General Steven Hummer, arguing that the military, not the courts, should carry out the law's repeal pursuant to the DADT Repeal Act.
In November, the government requested and received the stay [JURIST report] that suspended enforcement of the injunction. The government had requested that the appeal be placed on hold in light of the Don't Ask, Don't Tell Repeal Act, arguing that moving forward with the appeal would interfere with the repeal schedule that the Act sets in place. After hearing seven months of arguments and briefs, the Ninth Circuit rejected that appeal and lifted the stay. That decision came after the Ninth Circuit's denial [JURIST report] of a motion [text, PDF] by the US government that the court suspend the government's appeal of an injunction [JURIST report] issued by the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. Congress recently tried to delay the repeal of DADT when it passed the $690 billion National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials], which contains a provision [§ 533] requiring the chiefs of the branches of the military to submit written certification that DADT's repeal will not be harmful. The Don't Ask, Don't Tell Repeal Act was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. 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.