In an order from the clerk of the U.S. Court of Appeals for the Ninth Circuit today, the court followed up on the three-judge panel's order from this past week in the Log Cabin Republicans v. United States case by questioning who -- if anyone -- is left actually defending the "Don't Ask, Don't Tell" law -- 10 U.S.C. 654.
"After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654," the order begins.
The brief order goes on to note that the government only defended the constitutionality of the Don't Ask, Don't Tell Repeal Act -- and not the DADT law at issue in the case -- and states, "No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed."
Noting that the government may choose not to defend laws -- and citing the Feb. 23 letter from the attorney general to House Speaker John Boehner (R-Ohio) detailing the administration's decision not to defend Section 3 of the Defense of Marriage Act -- the order states:
If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae [people or groups who are not parties to litigation but who present the court with their views on the litigation] to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g) [which allows the court to permit those filing such amicus briefs to participate in argument].
The court then goes on to order the government to "advise the court whether it intends to submit a report to Congress" detailing a decision not to defend DADT as it did in February regarding Section 3 of DOMA and, if so, "to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding."
Additionally, the court asks the parties to explain "why this case should not be dismissed as moot," either now or upon certification of the Don't Ask, Don't Tell Repeal Act.
[UPDATE @ 4:55 PM: In a statement, LCR executive director Clarke Cooper said, "The ruling in Log Cabin Republicans v. United States set an important precedent by showing that discrimination against gay and lesbian Americans is unconstitutional." U.S. District Court Judge Virginia Phillips's decision at the trial court level in the case, by finding a constitutional violation of equal protection in DADT, creates a nondiscrimination obligation that LCR officials and their attorney have said they want to protect going forward since the DADT Repeal Act does not contain a nondiscrimination provision.
LCR's attorney, Dan Woods, said as much, telling the Washington Blade, "We're happy to brief this again and we don't think the case is going to be moot, we don't think it should be dismissed because, among other things, there's still this talk about repealing the repeal [in Congress]. There's a bill pending to repeal the repeal. That should make it clear that this case shouldn't be dismissed."
LCR deputy executive director Christian Berle put it more directly, telling Metro Weekly of the trial court ruling, "We're fully committed to the precedent in this ruling because it protects, in perpetuity, the constitutional rights of servicememebers."]
Responses are due to the court within 10 days.
Read the order: 112.pdf