[JURIST] The US Court of Appeals for the Ninth Circuit [official website] Monday ordered [text, PDF] the Obama administration to say whether it plans to defend 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 court said that it appeared from the merit briefs in Log Cabin Republicans v. USA [case materials] that the government was not prepared to defend the constitutionality of DADT because it has only asserted that the Don’t Ask, Don’t Tell Repeal Act of 2010 [text and materials] is constitutional and has not addressed the specific constitutionality of DADT. The repeal act is set to repeal DADT, but currently the policy remains in effect. The court ordered the Obama administration either to defend the constitutionality of DADT or submit a letter to Congress from the Attorney General stating the administration’s intention to refrain from defending it pursuant to 28 USC § 530D(a)(1)(B)(ii) [text]. The court said that if the Obama administration chooses not to defend DADT, it will allow one amicus curiae to participate in oral arguments in defense of the policy. The court’s order comes a week after a Ninth Circuit panel lifted a stay [order, PDF; JURIST report] blocking a lower court injunction against DADT, allowing for an immediate end to enforcement of the controversial policy. Monday’s order was unsigned by the judges, and it is not known [AP report] whether it came from the same judges who lifted the stay.

In November, the government requested and received the stay [text, PDF; 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 [Sec. 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.