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Two conservative legal groups have filed amicus briefs supporting the federal government’s defense of Don’t Ask, Don’t Tell in a case now before the U.S. Court of Appeals for the 9th Circuit. The Foundation for Moral Law, a public interest legal group in Montgomery, Ala., that has been involved in defending the Defense of Marriage Act (DOMA) in court, filed a brief on March 4 to overturn a ruling declaring the military’s ban on open homosexuals to be unconstitutional. The National Legal Foundation, which has intervened in defense of both DOMA and Proposition 8, California’s ban on gay marriage, filed its brief the same day. Both organizations said a recent congressional vote to repeal Don’t Ask, Don’t Tell does not wipe out the necessity of reversing the ruling, issued on Sept. 9 by U.S. District Judge Virginia Phillips in Riverside, Calif. “We think that Congress and the president should retain the authority to reinstate the ban if they decide it’s needed in the future,” said John Eidsmoe, counsel for the Foundation for Moral Law. The organization was created in 2002 by former Alabama Supreme Court Chief Justice Roy Moore, who had been removed from the bench after refusing to comply with a federal court order to remove a monument to the Ten Commandments from the court building. “If this decision stands, it’s precedence to say that Congress could never change the policy.” Steven Fitschen, an attorney for the National Legal Foundation, agreed that the ruling could crop up in future cases if not reversed. “It’s only a district court opinion, so it won’t have precedential value,” he said. “But nonetheless, courts look at it very differently if it’s vacated and no longer good law, versus if it’s not vacated.” Phillips concluded that Don’t Ask, Don’t Tell, passed by Congress in 1993, violated the due process and equal protection rights of homosexuals serving in the military. She also found that the law violated their right of free speech under the First Amendment. Obama signed legislation repealing the ban on Dec. 22. On Feb. 24, the Obama administration said it would no longer oppose court challenges to DOMA, enacted in 1996 to prohibit the federal government or individual states from recognizing same-sex marriages. U.S. Attorney General Eric Holder wrote a letter to Congress explaining that a part of the law forbidding federal recognition of same-sex marriages was unconstitutional. But the following day, the Justice Department filed its opening brief appealing Phillips’ ruling on Don’t Ask, Don’t Tell. Log Cabin Republicans, a conservative gay rights organization, brought the case against the federal government challenging the constitutionality of Don’t Ask, Don’t Tell. The government’s brief asked the 9th Circuit to halt the appellate proceedings or, in the alternative, stay the ruling to provide more time for “an orderly process for repeal.” In a statement issued on its Web site on the day it filed its brief, the Foundation for Moral Law chided the Obama administration’s efforts in defending Don’t Ask, Don’t Tell. “Doing the job the Obama Administration is only half-heartedly doing, the Foundation has stepped in with its arguments defending a time-honored military policy that bans open homosexuality,” it said. Eidsmoe, of the Foundation for Moral Law, argued that Phillips applied too stringent a standard of review in determining whether the government had a compelling interest in enforcing Don’t Ask, Don’t Tell. “The law has been challenged in court as being unconstitutional, so we’re arguing of course that it is constitutional,” Eidsmoe said. “We’re arguing there is at the very least a rational basis to justify the law.” The Foundation for Moral Law’s brief argues that ancient laws around the world have prohibited homosexual conduct and that the Constitution’s framers “would be shocked to see their provisions twisted” to sanction such behavior. The brief also cites statistics indicating that homosexuals have a higher propensity of contracting HIV and other sexually transmitted diseases that could constitute a health risk for other soldiers and increase medical costs for the military. “We focused on the area of the health hazards, which we think constitute at the very least a rational basis for the policy and probably a stronger basis,” he said. In its brief, The National Legal Foundation asks the appeal court to reverse the due process element of Phillips’ ruling because Log Cabin Republicans, as an organization challenging the ban, lacked standing to assert claims that are entitled to heightened scrutiny of the law under 9th Circuit precedent. Amanda Bronstad can be contacted at [email protected].

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