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A federal appeals court on July 11 ordered the Obama administration to declare for the record whether it intends to defend the constitutionality of Don’t Ask, Don’t Tell. The move by the U.S. Court of Appeals for the 9th Circuit came five days after a motions panel of the same court effectively barred enforcement of the ban on gays and lesbians serving openly in the military. In a July 11 order, a separate merits panel of the 9th Circuit noted that the government’s briefs appear to indicate “that the United States is not prepared to defend the constitutionality” of the military ban. The panel ordered the administration to notify Congress whether that is indeed its position, giving Congress or some third party the option to defend the ban during oral arguments on Aug. 29. “After months of doublespeak from Obama administration’s lawyers, the 9th Circuit Court of Appeals has demanded that the Department of Justice clarify its position on the constitutionality of ‘Don’t Ask, Don’t Tell,’ ” R. Clarke Cooper, executive director of Log Cabin Republicans, the plaintiff in the case, said in a prepared statement. Justice Department spokeswoman Tracy Schmaler did not respond to a request for comment. U.S. District Judge Virginia Phillips in Riverside, Calif., ruled on Sept. 9 that Don’t Ask, Don’t Tell violated the constitutional rights of homosexual servicemembers. She ordered a worldwide injunction barring enforcement of the law. The 9th Circuit subsequently stayed enforcement of the injunction; the motions panel lifted that stay on July 6. On Dec. 22, President Obama signed legislation repealing the ban. Government officials have said that the process of implementing the repeal should wrap up this summer, according to its briefs before the 9th Circuit. In its July 11 order, the merits panel found that the government appeared to be arguing not for the constitutionality of the ban itself, but rather for the merits of letting the repeal mechanism run its course. “No party to this appeal has indicated an intention to defend the constitutionality of [the ban] or to argue that the constitutionality holding of the district court should be reversed,” the panel said. Dan Woods, a partner in the Los Angeles office of White & Case who represents the Log Cabin Republicans, compared the situation to that attending the Defense of Marriage Act, the ban on federal recognition of same sex marriages. In February, the White House instructed the Justice Department to stop defending that law. The Republican leadership of the House of Representatives assumed the legal defense, hiring former solicitor general Paul Clement as lead counsel. In April, Clement resigned from King & Spalding after the firm withdrew from the case. This time, because Congress has already repealed the military ban, the outcome might be different, Woods said. “It means that if the government doesn’t submit a report to Congress, Congress may…choose not to intervene in our case,” he said. If that happens, the 9th Circuit indicated, both sides should declare whether the appeal should be dismissed as moot. Woods said he planned to argue that the case remains significant, particularly since the administrative transition to allowing open homosexuals in the military remains incomplete. He added that Leon Panetta, who has just become secretary of defense, needs to sign off on the implementation plan. “I assume he’s got other things to do, too,” said Woods, noting that Panetta is now in Iraq. The government must consider that amicus organizations supporting the law could still speak during the oral arguments, the court said. Organizations that have filed briefs in support of the ban include the Foundation for Moral Law, a public interest legal group in Montgomery, Ala.; and the National Legal Foundation. “That’s because while the government in our case didn’t really argue that Don’t Ask, Don’t Tell was constitutional, some of the amicus briefs did,” Woods said. Amanda Bronstad can be contacted at [email protected].

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