As mentioned in a previous post, the government has moved to have the Log Cabin Republicans’ suit challenging DADT, which is pending before the 9th Circuit, put on hold in light of the enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010. The government’s position is that:
This Court should now suspend the briefing schedule and hold the case in abeyance to allow that process to continue to completion. Indeed, if the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff make the certification contemplated by the Repeal Act, the challenge to § 654 will be moot, and the completion of the review process mandated by the Repeal Act may make it unnecessary to ever consider the impact of the enactment of the Repeal Act on the basis for the decision below.
The Log Cabin Republicans have now filed their response, opposing the Government’s motion. The gist of the motion is:
1. DADT remains in effect for the foreseeable future, insofar as the Don’t Ask, Don’t Tell Repeal Act of 2010 merely put repeal in motion, it didn’t actually repeal the law. As such, gay men and lesbians continue to have to lie about their identities and risk discharge from the military under the existing policy.
2. The lawyers for the Log Cabin Republicans made an offer to the government to agree to the abeyance if the goverment would agree not to discharge anyone under DADT policy pending full repeal. The government turned down the deal. Thus, it remains active military policy to enforce an unconstitutional policy, and continuing active review by the 9th Circuit is appropriate, indeed, necessary.
The government filed a response to the Log Cabin brief two days ago, arguing basically the same things it argued in its opening brief, and claiming that the Log Cabin Republicans were trying to do an end run around the 9th Circuit’s stay of Judge Phillips’ lower court order finding DADT unconstitutional. Basically, the government takes the position that we should wait until the administrative repeal process works itself out and should trust that the Pentagon will do the right thing.
I have made additional arguments to those made by the Log Cabiners in their brief for why the court should deny the government’s abeyance motion, arguments not made by the Log Cabin Republicans.