A week after finding the “don’t ask, don’t tell” policy unconstitutional, the Ninth Circuit Court of Appeals ordered the Obama Administration to clarify whether it would defend the policy in court. According to the order, the merits panel does not believe that the government is prepared to defend the law.
Though Congress repealed “don’t ask, don’t tell” last December, the measure has yet to take effect. Further confusing the situation, the legislation does not include a clearly-defined effective date, instead stating that the policy will be repealed 60 days after the President submits a written certification to the congressional defense committees that certain requirements have been met.
The order is the latest development in the ongoing case of Log Cabin Republicans v. USA. The court says that, despite its finding that the 1993 “don’t ask, don’t tell” law is unconstitutional, the Obama Administration has only offered arguments that the Don’t Ask, Don’t Tell Repeal Act of 2010 is constitutional.
While federal law permits the Obama Administration to refrain from defending the constitutionality of “any provision of a Federal statute,” the Attorney General must notify Congress when the government refuses to defend a law on constitutional grounds. The court’s latest order requires the administration to respond to the court within ten days stating if, and when, the administration will notify Congress that it will not defend the constitutionality of “don’t ask, don’t tell.”
According to Log Cabin Republicans attorney Dan Woods, the order will force the government to take a stand. “The government has been trying to have it both ways and now the government is not going to be allowed to have it both ways anymore. The court is saying either fish or cut bait,” Woods told the AP.
Even if the administration refuses to the defend the “don’t ask, don’t tell” policy, the battle may not be over; the court may allow amicus curiae to participate in oral argument in support of the law.
- Order, Log Cabin Republicans v. USA (Ninth Circuit Court of Appeals)
- 9th Circuit Orders Pentagon to Stop Don’t Ask Don’t Tell Policy (FindLaw’s Ninth Circuit Blog)
- Don’t Ask, Don’t Tell Repeal Act of 2010 (GPO)
- US Pressed on Military Gay Rights (SCOTUSblog)
- Amicus Curiae (FindLaw’s LawBrain)