SAN DIEGO (AP) — A federal appeals court that has called for the immediate halt of the military's ban on openly gay troops issued an order Monday requiring the U.S. government to state whether it will continue to defend the policy's constitutionality in court.
Monday's order comes less than a week after the 9th U.S. Circuit Court of Appeals in San Francisco told the Obama administration to immediately cease enforcing the "don't ask, don't tell" policy, which could speed up its repeal.
The ruling stems from a lawsuit filed by the Log Cabin Republicans against the Department of Justice.
The gay rights group last year persuaded a lower court judge to declare the ban unconstitutional after a trial that put the Obama administration in the position of defending a policy it opposes.
DOJ attorneys have said they are defending the policy in court as they do with any law that is being challenged. They also have said the issue should be decided by Congress and not the courts.
The three-judge merits panel of the 9th Circuit said after reviewing briefs from both parties in the case, that it appears the government is not prepared to defend the policy's constitutionality.
The order was not signed by the judges and it was not known if the three jurists were the same ones who ruled last week on stopping its enforcement.
Log Cabin Republicans attorney Dan Woods said the court is forcing the government to take a stand. "Now the government is not going to be allowed to have it both ways anymore," Woods said. "The court is saying either fish or cut bait."
DOJ officials could not be immediately reached for comment.
Woods said the order shows the court is wondering whether Congress intends to intervene in the case, just as it did when President Barack Obama ordered the DOJ to stop defending the constitutionality of the federal Defense of Marriage Act in February.
The House of Representatives disagreed, hiring separate counsel to defend DOMA's constitutionality.
Woods doesn't expect that will happen this time because Congress approved repealing the military ban in December and the Pentagon is already preparing to accept gay military personnel.
Monday's order states that if the government does not intend to defend the policy's constitutionality, it must report that to Congress, and let the court know whether that will happen in time for Congress to intervene if it chooses.
It also asked the parties to show why this case should not be dismissed as moot either immediately or when Obama certifies that all conditions have been met for the repeal.
It gave the parties 10 days to respond.
The court said last week there's no longer any purpose for a stay the appeals court had placed on U.S. District Judge Virginia Phillips' lower court ruling that had halted the policy. The court cited the Obama administration's recent position in another case involving same-sex marriage that it is unconstitutional to treat gay Americans differently under the law.
Although the stay is lifted, the 9th Circuit scheduled an Aug. 29 hearing to consider whether the government's appeal of the lower court's decision is valid.
But it's unclear whether the Pentagon will pursue the appeal, since defense officials already have said they'll stop enforcing the ban to comply with last week's court order that blocks the military from discharging anyone based on their sexual orientation.
As soon as the Pentagon certifies that lifting the ban will not affect military readiness, the military has 60 days to implement the repeal, which could happen by September.
Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said it is unsafe for military members to reveal their sexual orientation until the repeal is fully implemented.
She said the court is correct in pressing the government on this so it will make it clear that it is dropping the matter and "we will soon have finality with certification and repeal."
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