One week after President Barack Obama signed the Don't Ask, Don't Tell Repeal Act into law, the Department of Justice filed a motion in the Log Cabin Republicans' challenge to DADT to put the case on hold indefinitely to allow the president and Defense Department leadership to take steps detailed in the Repeal Act to end the ban on openly gay, lesbian and bisexual service.
The challenge in LCR v. United States resulted in a worldwide injunction of DADT for several days in October 2010, until the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on Oct. 20, and then, on Nov. 1, a stay pending the appeal of the trial court ruling and injunction.
Although the government's opening brief in the appeal of U.S. District Court Judge Virginia Phillip's ruling is scheduled to be submitted to the Ninth Circuit by Jan. 24, the DOJ lawyers have asked for the case to be put on hold to conserve the court system's resources and out of "respect for determination by the political branches that the orderly process mandated by the Repeal Act is necessary and appropriate to ensure that military effectiveness is preserved."
LCR's executive director, Clarke Cooper, disagreed in a statement on Jan. 3, saying, "Passage of the 'Don't Ask, Don't Tell' Repeal Act of 2010 was an important step toward open service, but until open service is a reality, our legal battle remains necessary."
In the Dec. 29 filing for the government, DOJ lawyers wrote, "In granting a stay pending appeal, this Court recognized the necessity of an orderly process in the Executive and Legislative Branches regarding any repeal of § 654 [the DADT law]."
Referring to the legislative process that resulted in Obama signing the Repeal Act on Dec. 22, the lawyers continued, "Since that time [of the stay], that process has been proceeding in a timely manner in both Branches. This Court should now suspend the briefing schedule and hold the case in abeyance to allow that process to continue to completion."
The "completion" referenced would be the repeal of Sec. 654, which occurs 60 days after the president, Defense secretary and chairman of the Joint Chiefs of Staff certify to Congress that the changes needed to implement repeal are "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces."
In the filing, DOJ lawyers made clear that DADT remains in effect until then -- as does the enhanced policy that DADT-related discharges need "the personal approval of the Secretary of the Military Department concerned, in coordination with the Under Secretary of Defense for Personnel and Readiness and the General Counsel of the Department of Defense."
Should the court grant the motion, the government lawyers state that they are "prepared to advise the Court within 90 days as to the status of the certification process."
Regardless, it is the possibility of any continued enforcement of DADT in the meantime that has caused concern for LCR and its lawyers.
Dan Woods, the lead attorney for LCR and a partner at the law firm of White and Case, said in a statement issued on Jan. 3, "I reached out to my counterparts at the Department of Justice and offered to accept a stay if the government would agree to immediately end all discharges under 'Don't Ask, Don't Tell.' The Obama administration refused, and insists on continuing its enforcement of a policy that has been rejected by Congress, the military, and the American people."
In the DOJ filing, the government lawyers wrote the the Repeal Act enactment "has resulted in a significant change of law, effectively legislating the orderly process that this Court's stay of the injunction allows to take place."
For LCR, though, continued delay of the case while the law remains in effect means continued risk to the careers of the gay, lesbian and bisexual servicemembers who are the targets of DADT investigations.
LCR is expected to file a motion opposing the government's request.
Read the DOJ filing: MotiontoHoldAppeal.pdf
[Photo: Adm. Mike Mullen, left, and Sec. Robert Gates, second from left, testify before Congress on Dec. 2, 2010. (Photo by Ward Morrison.)]