UPDATED 7:35 p.m. Friday:  The Log Cabin Republicans on Friday urged the Ninth Circuit Court not to put the “don’t ask/don’t tell” policy back into effect, even on a temporary basis.  The military, the new filing argued, has accepted homosexuals for enlistment in the services since the ban was lifted July 6, and no harm has befallen the military.  The document did not respond directly to the Obama Administration’s plea for broader relief, but made it clear it opposes that, too.

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The Obama Administration, directly challenging the authority of the courts to decide the time to end the military’s “don’t ask/don’t tell” policy against gays and lesbians in the services, urged the Ninth Circuit Court on Thursday to put that 18-year-old ban back into effect — and to do so within 24 hours.   In the meantime, it asked for a temporary order to restore the ban immediately.   The maneuver also appeared to set the stage to go on to the Supreme Court, if the Circuit Court were to balk.

In what government lawyers called an “emergency’ motion,  the Administration refused to accept a Circuit Court panel’s view of what is at stake before that court now, and refused to answer directly a question by that court about whether the government thinks the existing ban is unconstitutional.   Framing the questions at stake in its own way, the government in effect accused the Circuit panel of a series of serious legal misunderstandings.  The government seldom speaks, in its court filings, with such bluntness.

After having its way in the Ninth Circuit on the issue of ongoing enforcement of the ban, the Administration suddenly was confronted with a direct order by that court to stop enforcing the measure — putting an end to any discharges of gays and lesbians, and any investigation of their sexual conduct.   Its new legal filings reflected a deep frustration with that development.  And the strength of its objections made it seem that it would not leave matters wholly in the hands of the Ninth Circuit as the final tribunal.

The package filed Thursday afternoon with the Circuit Court in San Francisco included three items: a 26-page plea for reconsideration of the Circuit Court’s order on July 6 lifting the ban while the Circuit Court reviews it, a declaration under oath by a top Pentagon general arguing why the military — not the courts — should arrange for the ban’s actual end, and a letter brief in response to constitutional and legal process questions the Circuit Court had raised on Monday.

The fast-moving legal developments are occurring over a law that Congress has voted to repeal.  The repeal, however, has not yet taken effect, and will not — under Congress’s orders — until the President, Defense Secretary Leon Panetta, and the nation’s top military officer have formally declared that the military can handle repeal.  Even after those high-level declarations are made, the military will get another 60 days to actually end the ban.

In the sworn declaration filed Thursday, by Marine Major Gen. Steven A. Hummer (who is in charge of implementing the ban’s repeal within the military), he said that the military’s leaders will lay before the President, the Defense Secretary and the chairman of the Joint Chiefs of Staff “by the end of July or early in August” the materials they will need to decide whether to certify that the repeal of the ban will not harm the military’s readiness.

On that timetable, it would appear that the top officials’ formal certificates would not be signed until sometime in September at the earliest, starting the 60-day final implementation period to running.  Thus, it could be at least November before repeal actually took place.   The Circuit Court has scheduled a hearing on the constitutionality of the ban in the week of August 29.

The ban was adopted in 1993, after President Bill Clinton failed in an effort to persuade Congress to put an end to the military’s long-standing flat ban declaring that homosexuality was incompatible with military service.   Instead of ending the policy, Congress formalized it, leading to thousands of discharges over the years of gay and lesbian enlisted personnel and officers.

Last September, however, a federal judge in Riverside, Calif., District Judge Virginia Phillips, struck down the ban; in October, she imposed a worldwide order barring continued enforcement.  The Obama Administration appealed to the Ninth Circuit, and, after the Ninth Circuit put that ruling temporarily on hold, the injunction was blocked by that court on November 1, pending the outcome of the government’s appeal.

Several times, the Log Cabin Republicans, a gay rights advocacy group that challenged the ban, had attempted to get the Ninth Circuit to lift the stay, so that Judge Phillips’ ruling could go into effect, ending the ban.  Those efforts failed, until July 6, when the Circuit Court changed its mind and ordered the Pentagon to stop enforcing the ban.   The Pentagon complied almost immediately.

Until Thursday afternoon, it had appeared that the next step would be for the parties to answer a series of questions posed by the Ninth Circuit on Monday.  The most important of those questions were whether the Administration had abandoned the defense of the ban’s constitutionality, and whether the Circuit Court should declare the case moot once the new repeal law had taken effect.

Instead of taking the ten days that the Circuit Court had allowed for responses, the Administration reacted in three days, with its broad and energetic challenge to the Circuit Court’s authority.   It did note that the Log Cabin Republicans had told the Justice Department that the new maneuver would be opposed.

Since the government asked the Circuit Court to act on its request “by the close of business tomorrow, July 15,” the Log Cabin Republicans are likely to submit a quick response.  The Administration also asked that, while the Circuit Court ponders the new request, it issue a “temporary administrative stay” of Judge Phillips’ injunction against the ban.

In deciding to stop the ban’s enforcement, the Circuit Court had noted that the Administration, in its court filings up to that point, had not defended the constitutionality of the 1993 ban.  It also noted that the Administration had switched positions on another law that limits gay and lesbian rights, the federal Defense of Marriage Act, and was no longer defending that measure’s constitutionality.

But the Circuit Court also said that the issue before it was not the new law passed by Congress to repeal the gay and lesbian ban, but that ban itself.  It told the Administration to take a definite position on whether it would defend the ban itself, and suggested that, if the government did not choose to do so, the court probably would allow Congress to come into court to mount a defense (as the House of Representatives has done with the Defense of Marriage Act).

On Thursday, however, the government lawyers told the Circuit Court that it was wrong about what was before it.  The 1993 ban has been displaced by the new repeal law, so it is the constitutionality of that new law — giving the military time to adjust to repeal — that is at stake.   Moreover, the new filings, while not taking a stance on whether the 1993 ban itself is unconstitutional, said that the government had continued to defend it in court whenever it was challenged.  But, the filings added, the Circuit Court may consider, in the wake of Congress’s repeal legislation, whether to declare moot the case against the 1993 ban itself, and order the case dismissed, wiping out Judge Phillips’ injunction.

The new documents also argued that the government’s abandonment of the defense of the Defense of Marriage Act was different.  And, it noted, it had made that very argument in its court filings regarding the Defense of Marriage Act.   The courts owe much more deference to the military, it said, when a law affecting military operations is under challenge.

Both the Administration’s legal arguments, and General Hummer’s sworn statement, made the point that it should be the military, not the courts, that are in charge of ending the ban, with the military able to do so  in an orderly fashion.    If the ban continues to be lifted under a federal court’s order, the Administration’s brief said, that would in effect be in defiance of the wishes of the political branches, in passing the repeal ban with its stretched-out implementation timetable.

Gen. Hummer, in his declaration, said that military commanders around the globe had been told that it was their responsibility, and not the courts’, to find ways to implement the repeal law so as not to disrupt military operations.  If the courts now step in to control the end of the ban, the general’s statement said, that “would supplant and contradict the judgment of the Department of Defense about the proper sequencing and timing of…measures in preparation for the change in policy.”

Citing his 37 years in the Marines, and what he has learned while implementing the repeal law, Gen. Hummer said that “I have concluded that transition will best be implemented if the military ‘owns’ the process of repeal.  In other words, the premise of the [repeal] act, as implemented, is that change from within the organization will be more effective than change imposed from outside the organization” — a clear reference to the judiciary.

The Circuit Court does not have to act by tomorrow, despite the Administration’s request that it do so.  It very likely would not act at least until the Log Cabin Republicans group has responded. (UPDATED Friday p.m.  The Circuit Court asked the group to response to the governmnet’s plea for a temporary reinstatement of the policy.)

Even though the Supreme Court is now in its summer recess, nothing would prevent the Administration from asking the Justices to put the ban back into effect, if the Circuit Court does not do so.  (Previously, on Nov. 12, the Supreme Court turned down a request by the Log Cabin Republicans to allow Judge Phillips’ order to go into effect after the Ninth Circuit had put it on hold.  Log Cabin Republicans v.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S.: Restore military gay ban now (UPDATED Friday p.m.), SCOTUSblog (Jul. 15, 2011, 6:37 PM), http://www.scotusblog.com/2011/07/u-s-restore-military-gay-ban-now/