Although the Defense Department has confirmed that “don’t ask, don’t tell” is going unenforced as a result of a court ruling last week, a key question about the policy’s constitutionality remains alive.
And so a ninth circuit court clerk today ordered the Justice Department — which has not appealed the ruling — to instruct the court on whether it intends to defend the policy’s constitutionality “within such time as to ... enable Congress to take action to intervene in timely fashion in this proceeding.”
The Department of Justice has offered radio silence in response to the ruling since its Wednesday statement that it is “reviewing” the order. It’s been five days since the Ninth Circuit U.S. Court of Appeals ordered that enforcement of “don’t ask, don’t tell” must cease, despite a lengthy, ongoing repeal process for the policy that President Obama has said will be completed by this month.
The court also asked parties in the long-standing case against the policy, brought by the Log Cabin Republicans, to submit arguments on whether the suit should be rendered moot upon repeal certification of DADT. The court ordered that both parties respond to the order within 10 days. Oral arguments in the case before the Ninth circuit are scheduled for the week of August 29.
In a statement reacting to the court's request, the Log Cabin Republicans executive director Clarke Cooper complained of "months of doublespeak" by the Obama administration on whether it will defend DADT.
"Log Cabin Republicans have been fighting against 'don't ask, don't tell' in court for years," said Cooper, who claimed the ruling "set an important precedent by showing that discrimination against gay and lesbian Americans is unconstitutional." He said the ruling "is worth defending as long as 'don't ask, don't tell' remains on the books."
Drew Hammill, a spokesman for House minority leader Nancy Pelosi, said, “As the appeals process in the Ninth Circuit continues to chip away at DADT, Leader Pelosi would oppose an appeal to reverse the underlying court decision finding the DADT statute unconstitutional — whether the appeal is undertaken by the [Bipartisan Legal Advisory Group of Congress] or the administration.”
Following the administration’s February announcement that it would no longer defend the Defense of Marriage Act, House Republicans hired outside counsel, led by former George W. Bush solicitor general Paul Clement, to do so in multiple federal challenges to the 1996 law. Congressional intervention in this circumstance in lieu of a defense from the Justice Department remains unknown: The Justice Department and House speaker John Boehner’s office have not yet responded to requests for comment.