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With repeal of Don’t Ask, Don’t Tell expected to become effective on Sept. 20, a court ruling that the military’s ban on openly gay service members was unconstitutional is moot and should be wiped off the books, a Justice Department attorney told a federal appeals panel. In oral arguments before the U.S. Court of Appeals for the 9th Circuit on Sept. 1, Henry Whitaker, an appellate attorney in the department’s civil division in Washington, argued that U.S. District Judge Virginia Phillips’ Sept. 9 ruling consequently should be vacated from the record. “This lawsuit,” he said, “is about ending Don’t Ask Don’t Tell. Once Don’t Ask, Don’t Tell ends in 19 days, that is the end of this case.” A lawyer for the Log Cabin Republicans, the gay Republican organization that challenged the constitutionality of the policy, insisted that the ruling should remain intact. Those who have been dishonorably discharged under the ban have suffered collateral consequences, and Congress, in the future, could re-enact a ban on gays and lesbians serving openly in the military, said Dan Woods, a partner in the Los Angeles office of White & Case who represents the organization. He added that the Justice Department continues to defend the constitutionality of the policy, he said. “This administration in this courtroom today said they support a ban on gay service members,” Woods told reporters following the hearing. The arguments, which took place in Pasadena, Calif., came nearly one year after Phillips, a federal judge in Riverside, Calif., ruled that Don’t Ask, Don’t Tell violated the First Amendment and Fifth Amendment due-process rights of openly gay homosexuals serving in the military. Her order, which followed a trial, included an injunction prohibiting enforcement of the ban. Justice Department lawyers appealed Phillips’ ruling, defending the constitutionality of Don’t Ask, Don’t Tell. But on Dec. 22, President Obama signed legislation repealing ban. That the repeal wouldn’t harm the military had to be certified by Obama; Admiral Mike Mullen, chairman of the Joint Chiefs of Staff; and Secretary of Defense Leon Panetta. That review was completed on July 22. Under the new law, repeal will become effective 60 days after completion of that process. At least one member of the 9th Circuit panel appeared to recognize the political sensitivities surrounding the appeal. “We hear a lot about judicial activism, especially at the 9th Circuit,” said Judge Barry Silverman, questioning Woods’ argument that the public has an interest in keeping the ruling on the books. He said the public’s interest could also be in not having the courts decide political issues. “Why should we not just let nature take its course?” Silverman, who was nominated by President Clinton, joined judges Arthur Alarcon, a Carter appointee, and Diarmuid O’Scannlain, a Reagan appointee, on the panel. Woods focused most of his argument on why the ruling remained relevant. He said that those who had been dishonorably discharged under Don’t Ask, Don’t Tell had been denied GI benefits and the right to be buried at veterans’ cemeteries, for instance. He added that the ban might be re-enacted, noting that several Republican candidates for next year’s presidential election have indicated they would support reinstating the old policy. “The government will be unrestrained to ban gay service in the military,” Woods said. “Then we would have to start all over again. This case took seven years to get here today.” Silverman didn’t appear receptive to that argument. “Doesn’t that strike you as speculative?” he asked. Woods veered back to his underlying argument — that Phillips’ ruling was correct. He took issue with only one aspect of the ruling: Phillips denied claims that Don’t Ask, Don’t Tell, violated the equal protection rights of gays and lesbians in the military. Phillips cited the 9th Circuit’s 2008 decision in Witt v. Department of the Air Force, which set the legal standard for determining the constitutionality of the policy. During oral argument, Woods urged the panel to reverse that portion of Phillips’ ruling and consider rehearing en banc the Witt decision. He reiterated that the government has not argued on appeal that Don’t Ask, Don’t Tell is, or was, constitutional. In his rebuttal, Whitaker disputed that claim. “We continue to defend the constitutionality of the statute,” he said. “Whatever the current law is, your honor, we have been defending it.” He said the collateral effects of Don’t Ask, Don’t Tell didn’t matter anymore because the military already was accepting applications from gays and lesbians, including those who had been discharged. As for the possibility that Congress could reinstate the ban, Whitaker said that was “miles away” from certain. He continued to argue that Log Cabin Republicans, as an association, lacked standing to argue for individuals who had been discharged under Don’t Ask, Don’t Tell. Several amicus briefs were filed supporting the Justice Department’s appeal, including those by the Foundation for Moral Law, a public interest legal group in Montgomery, Ala., and the National Legal Foundation. The panel could uphold Phillips’ ruling, which would remain as precedent; decide that the order was moot; or vacate the ruling completely. If that’s the case, Woods said, there wasn’t much more that the Log Cabin Republicans could do to restore its case, which began in 2004 as the first to challenge the constitutionality of Don’t Ask, Don’t Tell as a whole, and not on behalf of an individual. “It has been a very rewarding experience,” he said following the hearing. “Our case really did help spur repeal of Don’t Ask, Don’t Tell. I think even the government acknowledges that.” Amanda Bronstad can be contacted at [email protected].

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