The administration filed court papers in defense of an appeals court order that allowed “don’t ask, don’t tell” to go back into effect after a federal judge declared it unconstitutional and barred its enforcement. The 9th U.S. Circuit Court of Appeals in San Francisco is reviewing the administration’s appeal.
Log Cabin Republicans, a gay rights group, has asked the Supreme Court to step into the case to reverse the appeals court decision that has allowed “don’t ask, don’t tell” to remain in effect despite the order by U.S. District Judge Virginia Phillips.
Acting Solicitor General Neal Katyal said the high court only rarely intervenes in a dispute at this stage, and “this case does not present the sort of exceptional circumstances that would warrant interference with an interim order of the court of appeals.”
The policy, which prohibits gays and lesbians from serving openly in the military, was lifted for eight days last month after Phillips ruled that it violates the civil rights of gay Americans and she issued an injunction barring the Pentagon from applying it. The Obama administration asked the appeals court to reinstate the ban until it could hear arguments on the broader constitutional issues next year.
President Obama has pledged to push the Senate to repeal the policy in the lame-duck session before a new Congress is sworn in.
R. Clarke Cooper, executive director of the Log Cabin Republicans, criticized Obama for not pushing Congress hard enough to repeal the 1993 law and at the same time “commanding his lawyers to zealously defend ‘don’t ask, don’t tell’ in court.”
The matter is in the hands of Justice Anthony Kennedy, who oversees emergency filings to the court from California. He can act on his own or refer the issue to the other justices. There is no deadline for a decision.
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