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Obama to Appeal 'Don't Ask Don't Tell' Ruling

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By Tanya Roth, Esq. on October 14, 2010 3:22 PM

According to the Obama Administration, it's a matter of not how, but when. The issue at stake is "don't ask don't tell" and the President is committed to its demise. The problem is how exactly this will be accomplished, as there are several legal issues, as well as branches of government, that need to be confronted.

First is the unfortunate position the Department of Justice finds itself in of having to appeal a ruling striking down don't ask. As discussed in a prior post, Judge Virginia Phillips of the Federal District Court for the Central District of California handed down an injunction on October 12, prohibiting the military from taking any further action under don't ask. The Judge found that the law unconstitutionally infringed on the fundamental rights of gay service members.

Thanks in part to the inaction of the Senate, the fate of the law is now in play in the court system. According to CNN, not only will the DOJ move forward with an appeal to the 9th Circuit, but they will likely move for an immediate stay on Judge Phillips' injunction. This would keep the status quo in place until the appeals court has had a chance to examine and rule on the merits of the case. The request for a stay must first be filed with Judge Phillips. If it is denied, it goes to a panel of the 9th circuit, and the appeal will follow.

The Justice Department will have to defend the law the Administration firmly intends to repeal because, as CNN reports, the President hopes to end the policy with the strength of Congressional backing, and not through the actions of one judge in one jurisdiction. Bottom line is this is a policy that is going to end; it's not whether it will end but the process by which it will end, said White House Press Secretary Robert Gibbs. The courts have demonstrated that time is ticking on the policy of don't ask, don't tell.

According to CNN, the bill currently before Congress would overturn the measure after a Pentagon review is completed in December.

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