The Obama Administration, making only a tepid defense of the military’s ban on gays serving openly in the services, urged a federal appeals court on Friday not to issue any ruling and thus allow time for the Pentagon to carry out the new law passed by Congress that will repeal the ban, probably sometime this year.  The  48-page brief filed in Log Cabin Republicans v. U.S., in the Ninth Circuit Court, is here.

While suggesting that Congress had the authority to pass the ban, when it did so in 1993, the new filing argued that, now, the courts — if they do anything at all — should conclude that Congress had the constitutional authority to give the Pentagon some time to achieve actual repeal of the policy under the law passed in December.

Under one scenario that the government suggested might come about, and one that it apparently would consider acceptable, the Ninth Circuit could go ahead and rule that the ban was unconstitutional, but then “adopt some form of…orderly process as a remedy” — presumably, matching the timetable that the new repeal law provides for the military to carry out the repeal.

What the Administration most wants from the Circuit Court, it stressed, was to overturn a federal District judge’s worldwide order forbidding the military from enforcing the gay ban against any member of the services, anywhere.   That sweeping order, the brief contended, was far beyond the judge’s power to impose a remedy after striking down the ban.

At most, if any court order is left in place against the ban’s enforcement, it should apply to only a single, anonymous service member — identified only as a lieutenant colonel — who is still on duty, and was one of those who filed the lawsuit against the ban.  That service member, identified only as “John Doe,” actually did not have a right to bring the lawsuit, the brief argued, and, in any event, he may be nearing retirement.

The brief argued that the government’s first preference is for the Ninth Circuit not to rule in any way on the constitutionality of the gay ban,. That was a renewal of its request, rejected earlier by a Ninth Circit motions panel, for the Circuit Court to hold the case ”in abeyance” while the Pentagon moves forward with plans to achieve the repeal within the ranks.  The three judges who now get assigned to the case, to consider it on its merits, would have the authority to consider that abeyance request anew, the brief asserted.

Under the repeal law passed by Congress, which the new brief said would make the court case “moot,” the ban on openly gay service members would not take effect until 60 days after the President and the Defense Secretary have said formally that the military had been retrained to accept repeal, and so top officials could then go forward with repeal.

Both President Obama and Defense Secretary Robert Gates have said that the practical steps to implement repeal will be accomplished during this year.   The new filing did not give a specific date or range of dates that repeal would come about, suggesting only that “the process of repealing [the ban] is well under way.”

One of the key arguments made by the new filing was an assertion that, even if U.S. District Judge Virginia A. Phillips of Riverside, Calif., was correct in striking down the ban last October, the circumstances changed when Congress passed the repeal law in December.  The “orderly process” that Congress has now mandated, the brief suggested, by itself is enough to make the immediate end-the-ban injunction issued by the judge “an inappropriate remedy.”

The brief essentially made three arguments for reversal of the judge’s order nullifying the ban and ordering it abolished: first, that those who sued did not have “standing” to bring the case at all; second, that the repeal law put the case in “a different posture” by mandating a repeal process that would move at a more measured pace to avoid disruption in the ranks, and, third, that the judge went too far in making the decision against the ban effective worldwide.

Judge Phillips’ order has been postponed by the Circuit Court while the government’s appeal proceeds.  The new brief relied on some of the arguments a Circuit Court panel had used in granting the government’s stay request.

Under the briefing schedule set by the Ninth Circuit in January, the ban's challengers are to file their "answering brief" by March 28, with the government’s reply due 14 days after that.  No date has been set for oral argument.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, Delay urged on military gay ruling, SCOTUSblog (Feb. 25, 2011, 10:03 PM), http://www.scotusblog.com/2011/02/delay-urged-on-military-gay-ruling/