SAN DIEGO – A federal appeals court that has called for the immediate halt of the military’s ban on openly gay troops issued an order requiring the U.S. government to state whether it will continue to defend the constitutionality of the policy in court.
Monday’s order comes less than a week after the 9th U.S. Circuit Court of Appeals in San Francisco ordered the Obama administration to immediately cease enforcing “don’t ask, don’t tell,” which could speed up its repeal.
The ruling stems from a lawsuit filed by the gay rights organization, the Log Cabin Republicans, against the Department of Justice. The rights group last year persuaded a lower court judge to declare the ban unconstitutional.
The lawsuit that went to trial last year put the Obama administration in the awkward position of defending a policy it opposes.
DOJ attorneys have said they are defending the policy in court as they do with any law that is being challenged. They also have said the issue should be decided by Congress and not the courts.
The three-judge merits panel of the 9th Circuit said after reviewing briefs from both parties in the case, that it appears the United States is not prepared to defend the policy’s constitutionality.
The order was not signed by the judges and it was not known if the three jurists were the same justices who ruled last week on stopping the policy’s enforcement.
Log Cabin Republicans attorney Dan Woods said the court is forcing the government to take a stand on the issue.
“The government has been trying to have it both ways and now the government is not going to be allowed to have it both ways anymore,” Woods said. “The court is saying either fish or cut bait.”
DOJ officials could not be immediately reached for comment.
Monday’s order states that if the government does not intend to defend the policy’s constitutionality, it must submit a report to Congress stating that, and tell the court whether it intends to do that in time for Congress to take to intervene if it chooses.
It also asked the parties to show why this should not be dismissed as moot either immediately or when President Barack Obama certifies that all conditions have been met for the repeal.
It gave the parties 10 days to respond.
The court said last week there’s no longer any purpose for a stay the appeals court had placed on a lower court ruling that overturned “don’t ask, don’t tell.” Congress repealed the policy in December and the Pentagon is already preparing to accept gay military personnel.
After the government appealed U.S. District Judge Virginia Phillips’ decision to halt the policy, the 9th Circuit agreed to keep the policy in place until it could consider the matter. The appeals court reversed itself with last week’s order by lifting its hold on Phillips’ decision, citing as a reason the Obama administration’s recent position in another case involving same-sex marriage that it is unconstitutional to treat gay Americans differently under the law.
Although the stay is lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government’s appeal of the lower court’s decision is valid. But it’s unclear whether the Pentagon will pursue the appeal, since defense officials already have said they’ll stop enforcing the ban.
In the meantime, the court order blocks the military from discharging anyone based on sexual orientation, a Pentagon spokesman said.
As soon as the Pentagon certifies that repealing the ban will have no effect on military readiness, the military has 60 days to implement the repeal.
Officials said they believe the ban could be fully lifted by the end of September.
Woods said the order shows the court is wondering whether Congress intends to intervene in the case or not, just as it did when President Obama ordered the Justice Department to stop defending the constitutionality of the federal Defense of Marriage Act in February. The House of Representatives disagreed with the government and hired separate counsel to defend DOMA’s constitutionality.
Woods doesn’t expect that will happen this time because Congress has approved repealing the military ban.