The Justice Department on Wednesday asked the U.S. Supreme Court not to intervene in “Don’t Ask, Don’t Tell,” and to keep the policy in effect while a lower court considers the constitutionality of the military’s ban on openly gay service members.
Log Cabin Republicans, a gay rights group and plaintiffs in the case to overturn the ban, petitioned the Supreme Court on Nov. 5 to step in and reverse the recent appeals court decision that has allowed DADT to remain in effect despite a September ruling by U.S. District Court Judge Virginia A. Phillips, declaring the policy “unconstitutional.”
Now the Obama administration is asking the nation’s highest court to uphold the appeals court ruling and allow the policy to remain on the books throughout the ongoing appeals process.
Dan Woods, lead attorney for the Log Cabin Republicans, issued this statement:
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“We have reviewed the government’s opposition to Log Cabin’s application to vacate the stay of Judge Phillips’s injunction by the Ninth Circuit. In our view, the government’s lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court.
First, we argued that the premise of the government’s position — that it needs time to conduct an orderly process of repealing DADT — is entirely speculative because Congress has not and very well may never repeal DADT; the government’s filing today does not address that issue.
Second, we argued that the Ninth Circuit order did not take into account the harm to service members and potential enlistees resulting from the stay; the government’s filing today does not respond to that point either. At this point, all we can do is to look forward to a favorable ruling from the Supreme Court.”
DADT was lifted for eight days last month after Phillips issued a worldwide injunction barring the Pentagon from enforcing the ban.
But on Oct. 20, a three-judge panel U.S. Court of Appeals for the Ninth Circuit granted the Justice Department’s emergency request to allow the policy to remain intact while the appeals court considers the issues presented.
The matter is in the hands of Justice Anthony Kennedy, who oversees emergency filings to the court from California. He can act on his own or refer the issue to the other justices. There is no deadline for a decision.
The moves comes as the White House continues to push for repeal this year during the lame duck session of Congress, recognizing that it will be even tougher to end the 17-year-ban when Republicans gain control of the U.S. House of Representatives next year.
Obama reiterated on the day following the Nov. 2 mid-term election that he wants to end the ban. Even so, his administration has fought against the court-ordered repeal.
A copy of the Log Cabin Republican’s petition to vacate the stay is here (PDF).
A copy of the Justice Department’s opposition response is here (PDF).
