Federal Judiciary

New plea on gay case timing

By Lyle Denniston

The Justice Department on Friday asked the Ninth Circuit Court either to put on hold the constitutional case on gays in the U.S. military, or else give it more time to file its written arguments — a plea that would stretch out the briefing schedule another month.  The request came in a new filing (found here) after a gay rights advocacy group had opposed any further delay in the appeals court process.

The Circuit Court has under review a federal judge’s decision striking down the 1993 law that bars gays and lesbians from serving openly in the military services.  Congress has just repealed that law, but has mandated a procedure that will delay implementation of the repeal for weeks and perhaps months.  Last month, government lawyers asked that the case to held in abeyance to allow those implementation steps to go forward.

The Log Cabin Republicans, which had won the decision nullifying the ban, objected, arguing that the government was simply trying to avoid the embarrassment of having to file in court a defense of the constitutionality of a law that high government officials do not want to defend.  Responding, the Justice Department said the steps required by Congress are going forward, but that, in the meantime, the constitutional case should not unfold further.

If the case is not put on an inactive status, the Department said, the Court should give it another 30 days to file its opening brief.  That would make that document due on Feb. 23, instead of the presently scheduled Jan. 24.

The case is Log Cabin Republicans v. U.S., et al. (Circuit docket 10-56634).

Full post as published by SCOTUSBLOG on January 14, 2011 (boomark / email).