Federal Judiciary

Delay sought on ?don?t ask? appeal

By Lyle Denniston

The Obama Administration has asked the Ninth Circuit Court to put on hold, for 90 days or more, its review of the constitutionality of the 1993 federal law that bars gays and lesbians from serving openly in the military.  In a motion filed Wednesday, Justice Department lawyers said the Pentagon needs time to implement the new law that will repeal the ban but not immediately.

The Log Cabin Republicans, a gay rights group that persuaded a federal judge in California to rule that the law is unconstitutional, will oppose any delay of the Circuit Court’s review, the government motion said.  Earlier, after President Obama signed the repeal measure into law, the Log Cabin Republicans said they would press on with their case until the policy has in fact come to an end, and no more gays or lesbians face discharge from the services (see this press release)

As of now, the briefing on the government’s pending appeal (U.S. v. Log Cabin Republicans, 10-56634) is scheduled to continue, with the government’s  brief due Jan. 24, the response by Feb. 22, and the reply by March 8.  The new motion, however, asked that this schedule be suspended while the Pentagon takes the steps that Congress ordered before the repeal can take effect.  (Attached to the government motion is the text of the repeal law, plus Pentagon memos about continued enforcement of the ban in the meantime.)

The Administration motion said it would report  back to the Circuit Court within 90 days on how the implementation process is going.

Under the repeal law, the 1993 ban will not be taken off the books until 60 days after the President sends to Congress an official declaration by the President, the Defense secretary, and the chairman of the military Joint Chiefs of Staffs that they have taken the implementation steps Congress has mandated.

In asking for delay of the constitutional case, the Administration noted that the Circuit Court had previously put the judge’s decision nullifying the ban on hold while the appeal proceeds.  The reason for that, the motion recalled, was to give the government time to make an “orderly” transition to the end of the ban.  The repeal act echoes “the concerns that this Court expressed in staying the appeal,” the motion said.

Congress’s agreement to repeal, the motion said, “has resulted in a significant change of law, effectively legislating the orderly process that the Court’s stay of the injunction allows to take place.”  Once the new law is implemented, the motion added, it “may make it unnecessary to ever consider” how the new law affects the constitutional case.

Full post as published by SCOTUSBLOG on January 01, 2011 (boomark / email).