A federal court on Monday ordered the Obama Administration to reveal whether it intends to defend the constitutionality of “Don’t Ask, Don’t Tell,” the military’s ban on openly gay service members.
The ruling comes just five days after the court ordered an immediate halt to the ban’s enforcement.
In a written order on Monday, the 9th U.S. Circuit Court of Appeals said it appeared “the United States is not prepared to defend the constitutionality” of the military’s longtime restrictions against gay men and lesbians in uniform.
A three-judge panel of the 9th Circuit Court on Wednesday upheld a lower-court decision declaring “Don’t Ask, Don’t Tell” unconstitutional and ordered the military to immediately lift the ban, despite congressional action last year to end it.
Monday’s order instructs the administration to inform the 9th Circuit, as required by law, whether the government intends to submit a report to Congress outlining its decision to refrain from further defending “Don’t Ask, Don’t Tell.”
The court said that no party in the case has indicated an intention to defend the ban or argue that the lower-court ruling should be reversed. However, other groups may be allowed to intervene in the case to defend “Don’t Ask, Don’t Tell,” the court said.
Following last week’s ruling, the Pentagon said it would comply with the court order and is “taking immediately steps to inform the field of this order,” said Pentagon spokesman Marine Col. Dave Lapan, in statement.
But the Justice Department did not make clear whether it would seek further judicial review of the matter.
“The Court of Appeals for the Ninth Circuit is correctly pressing the Department of Justice and Department of Defense on whether or not they intend to defend the constitutionality of ‘Don’t Ask, Don’t Tell,'” said Aubrey Sarvis, Executive Director of Servicemembers Legal Defense Network, in a statement.
“It is our hope they will not continue to do so, and we will soon have finality with certification and repeal,” he said.
The government has 10 days to respond to the court’s order, according to the filing.
A copy of the order is here (PDF).