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Ninth Circuit declines to put 'Don't Ask Don't Tell' appeal on hold

By Erin Bock

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday denied [order, PDF] the government's request to put on hold all appeals in Log Cabin Republicans v. USA, 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's motion [text, PDF] requested that the court suspend its own appeal of an injunction [JURIST report] issued by the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. In November, the government requested and received a stay [text, PDF; JURIST report] that suspended enforcement of the injunction. The government requested that the appeal be placed on hold 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. The government argued that moving forward with the appeal would interfere with the repeal schedule that the Act sets in place. In January, the government requested and received a delay in the case's briefing schedule, but Friday's motion reset the schedule. The government's opening brief is now due on February 25. The Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit, stated that it was pleased [press release] with the court's decision:

We are pleased by the Ninth Circuit Court's ruling denying the government's motion to stay its own appeal of a lower court decision declaring 'Don't Ask, Don't Tell' unconstitutional. The government should not have appealed in the first place and has been trying ever since to dealy any decision by the Ninth Circuit. Now, the Justice Department has to file its brief in the appeal in a few weeks and it will be very interesting to see how the government will try to argue, as it must, that DADT is constitutional.

The group stated it had made an offer to delay the appeal while the act is implemented if the government agreed to cease further to discharges under DADT. The group called the government's decision not accept the offer "unfortunate and inexplicable."

The cct states that the repeal of DADT 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 Obama, the Secretary of Defense and the chairman of the Joint Cheifs of Staff (JCS) [official website]. Until that time, the current DADT policy is to remain in effect. Officials on Friday outlined the Pentagon's plan to eliminate DADT [WP report] and stated that training will occur in three phases: military chaplains, lawyers and civilian personnel; then commanding officers; then "rank and file" troops. The officials did not state how long training would take, but the various military branches are under orders to submit training plans to Defense Secretary Robert Gates by February 4. 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 31, 2011 (boomark / email).