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Obama administration seeks to delay 'Don't Ask Don't Tell' appeal

By Erin Bock

[JURIST] The Obama administration has filed a motion [text; PDF] with the US Court of Appeals for the Ninth Circuit [official website] to delay the briefing schedule in US v. Log Cabin Republicans, a case regarding the constitutionality of the military's "Don't Ask Don't Tell" (DADT) policy [10 USC § 654 text; JURIST news archive]. The government asked Wednesday for a 90-day delay in the briefing schedule in light of the Don't Ask, Don't Tell Repeal Act of 2010 [text and materials], which President Barack Obama signed into law [JURIST report] on December 22. Under the current briefing schedule, the government's opening brief would be due on January 24. The government argues that proceeding with briefs would interfere with the repeal schedule that the act already sets in place. The repeal will become effective 60 days after the Secretary of Defense [official profile] receives a plan for the repeal's implementation from the Department of Defense [official website] and the plan is approved by the president, secretary, and chairman of the Joint Chiefs of Staff (JCS) [official website]. Until that time, the current DADT policy is to remain in effect. The government argues in its motion that the repeal act brings about a significant change in the law and that notions of judicial economy and respect for political branches mandates that the process outlined in the act is allowed to proceed without interference. The motion further states that the court action questioning the constitutionality of DADT would be unnecessary following the enactment of the repeal act. The government stated that it will advise the court within 90 days about the status of the certification process for the repeal's implementation. The Log Cabin Republicans [advocacy website], the group that initiated suit in 2004, stated that it will continue its lawsuit [press release] during the act's implementation until DADT is not longer in force.

In October, Judge Virginia Phillips of the US District Court of the Central District of California [official website] ordered the US military to end enforcement of the DADT policy [JURIST report]. The order came more than a month after the court declared the policy unconstitutional [JURIST report]. Following the ruling, the Department of Justice (DOJ) [official website] asked the district court not to enforce its decision [JURIST report], arguing that the ruling was overbroad and that the military should be permitted time to implement a non-judicial solution to the issue. The Ninth Circuit granted [order; PDF] the government's motion to stay the district court's order pending appeal in November. Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT.

Full post as published by JURIST - The Paper Chase on January 02, 2011 (boomark / email).