DOJ asks appeals court to vacate ‘Don’t Ask Don’t Tell’ ruling

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[JURIST] Lawyers for the US Department of Justice (DOJ) on Thursday asked the US Court of Appeals for the Ninth Circuit [official websites] to overturn a ruling that the “Don’t Ask, Don’t Tell” policy (DADT) [10 USC § 654; JURIST news archive] is a violation of service members’ constitutional rights. The repeal of DADT is set to take effect on September 20, and the DOJ argued the impendency of the repeal renders the original court case moot [LAT report]. The Log Cabin Republicans (LCR) [advocacy website], the gay rights group that sued over the policy, urged the appeals court to uphold the ruling to prevent the government from banning gay military service in the future, noting that the new Congress may repeal the repeal [Bloomberg report]. The lawyer for the LCR indicated the ruling also serves as an important legal basis for collateral claims [AP report] for reinstatement, back pay or other compensation related to withheld benefits for service members affected by the policy. The DOJ countered that the court should not speculate about what may or may not happen in the future when making their decision.

In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, President Barack Obama [official website], Defense Secretary Leon Panetta [official profile] and the Joint Chiefs of Staff certified [JURIST report] DADT’s repeal, scheduling the policy to end September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don’t Ask, Don’t Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.

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