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Justice Department files motion to keep ‘Don’t Ask, Don’t Tell’ in effect, for now

Friday, July 15, 2011
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The Obama administration on Thursday asked a federal appeals court to reconsider an order that requires the immediate end to “Don’t Ask, Don’t Tell,” the policy banning gays and lesbians from serving openly in the military.

In its motion — filed in response to the U.S. 9th Circuit Court of Appeals’ decision to lift its stay of a lower court’s ruling last year that found the ban unconstitutional — the Justice Department urged the court to issue a decision by the end of the day Friday.

Instead of seeking relief from the Supreme Court, the Justice Department is asking the U.S. Court of Appeals to reconsider its July 6 order which found that changes in the legal landscape weighed in favor of reimposing the ban issued by a federal district court in California last year.

The appeals judges cited the Obama administration’s conclusion earlier this year that federal actions based on sexual orientation should get heightened scrutiny in court and the fact that the administration was not arguing that the 1993 law imposing “don’t ask, don’t tell” was constitutional.

“The Department has filed a motion asking the Ninth Circuit to reconsider its order lifting the stay of the injunction on the ‘Don’t Ask, Don’t Tell’ policy to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal,” Justice Department spokeswoman Tracy Schmaler said in a statement Thursday night.

Justice Department lawyers said that ending the ban now would pre-empt the “orderly process” for rolling back the 17-year-old policy as outlined in the law passed and signed by President Obama in December.

On July 6, the court ordered the U.S. government to immediately halt enforcement of “Don’t Ask, Don’t Tell;” the Pentagon subsequently said it would comply with the order.

“At SLDN, we are frustrated by this last-minute filing, which could well add more delay and confusion for service members. These developments only serve to underscore the need for immediate certification and finality.” said Servicemembers Legal Defense Network (SLDN) Executive Director Aubrey Sarvis, in a statement.

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