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As political and military leaders continue the process of dismantling “Don’t Ask, Don’t Tell,” the organization that won an injunction barring worldwide enforcement of the law last fall unleashed a new legal tactic in an effort to move faster toward ending the ban on openly homosexual service members. Log Cabin Republicans asked the U.S. Court of Appeals for the 9th Circuit on May 10 to vacate its stay of the injunction issued on Oct. 12 by U.S. District Judge Virginia Phillips in Riverside, Calif. — essentially, asking the court to short-circuit the briefing and argument schedule in the appeal. The organization, which represents gay and lesbian members of the GOP, cited what it characterized as the Justice Department’s shift in focus away from defending the law’s constitutionality in court. “Now that the government has abandoned that claim and no longer argues that ‘Don’t Ask, Don’t Tell’ is constitutional, the Court of Appeals should vacate the stay and reinstate the district court’s injunction precluding the government from enforcing or applying ‘Don’t Ask, Don’t Tell,’ ” said Dan Woods, a partner at White & Case in Los Angeles who represents Log Cabin Republicans. “ This is especially important because ‘Don’t Ask, Don’t Tell’ is still the law of our country and the government is still applying it to violate the constitutional rights of current and prospective members of our country’s armed forces.” Phillips ruled on Sept. 9 that the law violated openly gay homosexuals’ due-process and free-speech rights. In moving to stay Phillips’ injunction, government lawyers wrote that they were likely to succeed on appeal in arguing that Don’t Ask, Don’t Tell was constitutional when passed in 1993. The 9th Circuit granted the stay on Nov. 1. Congress passed a bill repealing Don’t Ask, Don’t Tell on Dec. 22, but the armed forces have yet to implement the change. In a brief filed with the 9th Circuit, the Justice Department moved to hold Phillips’ ruling “in abeyance” or, alternatively, overturn the decision to allow an “orderly” repeal process. Log Cabin Republicans, opposing the Department of Justice’s brief, called the government’s shift in emphasis an “about face” from defending the constitutionality of Don’t Ask, Don’t Tell. “The government’s silence on these critical points that led to the issuance of the stay demonstrates that the government can no longer maintain that it is likely to succeed on the merits of its defense of the constitutionality of DADT,” Woods wrote. “A continued stay of the district court’s injunction is therefore inappropriate.” Briefing before the 9th Circuit was completed on April 28; oral arguments have not yet been scheduled. If the stay doesn’t get lifted, the 9th Circuit should set the case on an expedited schedule, the motion argued. Justice Department spokeswoman Tracy Schmaler declined to comment. Amanda Bronstad can be contacted at [email protected].

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