Delay of gay case appeal opposed
on Jan 11, 2011 at 10:43 pm
The Log Cabin Republicans, a gay rights advocacy group, has urged the Ninth Circuit Court to keep moving ahead toward a ruling on the constitutionality of the federal ban on gays and lesbians serving openly in the U.S. military. A final ruling on the “don’t ask/don’t tell” law could be prepared before the ban could be removed under the new repeal law passed last month by Congress, the group argued.
A federal judge in California struck down the 1993 law last September, but that ruling has been put on hold while the Obama Administration pursues an appeal in the Ninth Circuit — an appeal that has been put on a fast track. In late December, the Administration asked the Circuit Court to put the case on hold, as the Pentagon takes the steps required by Congress before the ban can be lifted under the new legislation.
The Log Cabin Republicans, in a strongly worded opposition filed on Monday, accused the government of seeking a postponement so that it would not have to file its opening brief later this month, where it would have to defend the ban to support the appeal it is pursuing.  It is not a burden for the government to file a legal paper, the challengers contended, unless the Administration is uncomfortable with having to file a brief “to defend the indefensible.”
The new filing informed the Circuit Court that, before the Administration had filed its plea for the case to be held “in abeyance,” the Log Cabin Republicans had agreed to a delay of the case, provided that the Pentagon in the meantime would agree to stop any discharges of gay or lesbian members of the military for violating the ban. That offer was refused, the document noted.  The Administration had not revealed that offer when it filed for delay, the Log Cabin Republicans noted, and, it added, discharges actually have continued to occur.
The challengers contended that the steps Congress mandated before the ban would actually end will stretch out the process of dismantling the policy for months, and maybe even for years; there is no timetable for the policy to actually end, the brief noted.
By contrast, it argued, the filing of briefs in the pending appeal will be completed by March 8, and it is likely that the hearing and decision on the constitutional challenge could emerge from the Circuit Court before repeal ultimately took effect.
The document also noted that there has been talk from some members of Congress, that in the just-opened new session, an effort will be made to repeal the repeal law.
The brief urged the Circuit Court to adopt one of two alternatives: first, refuse the Administration plea for delay, “and proceed to a speedy hearing and decision” on the constitutional challenge, or, second, agree to put the case on hold but in the meantime  remove the Circuit Court order staying the decision that nullified the policy, thus barring the military from enforcing the policy while the government appeal moves on to completion.
