Originally published on Advocate.com December 30 2010 11:40 AM ET
In light of congressional repeal of “don’t ask, don’t tell,” signed into law by President Barack Obama last week, the Justice Department is now seeking to suspend its appeal in the Log Cabin Republicans’ longstanding federal lawsuit against the policy.
In a late Wednesday filing to the U.S. court of appeals for the ninth circuit, Justice Department attorneys wrote that the “orderly” terms of repealing DADT as set forth by the law will likely obviate the government’s appeal in the case.
But Log Cabin Republicans executive director R. Clarke Cooper called the motion a stall tactic that would delay the government’s opening brief in the appeal due January 24. “The DOJ can hardly argue now that ‘don’t ask, don’t tell’ is constitutional,” Cooper told The Advocate. “The government is trying to avoid an embarrassing situation, and it ignores the fact that the military remains free to discharge personnel.”
Dan Woods, lead attorney for the Log Cabin Republicans, told The Advocate following the repeal bill signing ceremony last week that he would not agree to suspend the suit, given that “don’t ask, don’t tell” technically remains in effect. “Unless the government agrees not to discharge any more service members, our lawsuit is alive and kicking," Woods said.
In its filing, Justice Department attorneys wrote that the “don’t ask, don’t tell” repeal act “establishes an orderly process” for ending the policy. As part of that process, President Obama, Defense secretary Robert M. Gates, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen must all certify that ending DADT “is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”
Under terms of the law, repeal would not go into effect until 60 days after the certification process is complete. Advocacy groups such as Servicemembers Legal Defense Network have warned gay and lesbian service members not to come out unless repeal is fully implemented.
In September a federal district judge in Riverside, Calif., ruled “don’t ask, don’t tell” unconstitutional in the Log Cabin case and issued a worldwide injunction banning enforcement of DADT. Government attorneys argued that an abrupt end to the policy would be disruptive, resulting in “immediate harm” to the armed forces. In a split decision, a three-judge panel of the ninth circuit agreed and stayed the injunction.
“In granting a stay pending appeal, this Court recognized the necessity
of an orderly process in the Executive and Legislative Branches
regarding any repeal of [DADT],” government attorneys wrote. “Since
that time, that process has been proceeding in a timely manner in both
Branches. This Court should now suspend the briefing schedule and hold
the case in abeyance to allow that process to continue to completion."