The Ninth Circuit Court on Monday ordered the Obama Administration to take a definite position on whether it will defend the constitutionality of the Pentagon’s existing “don’t ask/don’t tell” policy against gays and lesbians serving openly in the military.  In a new order, the three-judge Circuit Court panel indicated it may let someone else come to the defense of that policy, if the government doesn’t.  But it also raised the prospect that it will end the case over the constitutional question abruptly, perhaps later this summer.

A federal judge in California has struck down the policy, and that ruling is under review by the Ninth Circuit, with a hearing scheduled for the week of August 29.  The case has grown somewhat complicated by the fact that Congress has voted to repeal the 18-year-old federal law that created the policy, but that repeal has not yet taken effect, and the Circuit Court noted on Monday that it “remains the law of the land today.”

In the new order, the panel that will decide the case noted that “the United States is not prepared to defend the constitutionality” of the 1993 law.  That, though, is the only law at issue before the Circuit Court, it noted.  “The central issue this court must address,” it said, was the constitutionality of the existing law, not the repeal law, and yet no party involved in the case is willing to defend what Congress enacted in 1993.

The panel acknowledged that the government does not have to defend the validity of any part of a federal law.  But, it went on, the Circuit Court needs to know what the government’s position is on that law as it exists.  If the government is not going to defend it, it said, it may allow someone else to do so — and it mentioned Congress as a possible defender.  (The House of Representatives is already in several federal courts defending another federal law that denies benefits to gays and lesbians — the Defense of Marriage Act — because the government has abandoned its former defense of that Act.)

To sort all of this out, the panel ordered the government to advise it within ten days whether it will formally abandon any defense of the law, and, if it does, whether it will do so in time to enable Congress to take up the defense and join in the Circuit Court’s review.   But, in the final part of the order, the panel told the parties in the case to offer reasons why the case should not be dismissed as moot, now or when the repeal law actually takes effect.  Under the repeal law, its effective date is to come 60 days after the President, the Defense Secretary, and the nation’s top military officer formally certify that the military is ready to implement the law.

All of the responses the panel ordered are due in ten days.

Posted in Cases in the Pipeline

Recommended Citation: Lyle Denniston, U.S. pressed on military gays’ rights, SCOTUSblog (Jul. 11, 2011, 9:13 PM), http://www.scotusblog.com/2011/07/u-s-pressed-on-military-gays-rights/