SAN DIEGO — The military's ban on openly gay troops will be lifted within weeks, but the policy can still be re-enacted in the future.
That's why a Republican gay rights organization that sued the Obama administration to stop enforcement of the policy says it will ask the 9th U.S. Circuit Court of Appeals on Thursday to declare the nearly 18-year-old law unconstitutional, affirming a lower court's ruling last year.
With several Republican presidential candidates, including Rep. Michele Bachmann, indicating they would favor reinstating the ban if elected, such a ruling is needed, said Dan Woods, the attorney for the Log Cabin Republicans. Declaring the law unconstitutional would also provide a legal path for thousands discharged under the policy to seek reinstatement, back pay or other compensation for having their careers cut short, Woods said.
"The repeal of 'don't ask, don't tell' doesn't say anything about the future," Woods said. "It doesn't (explicitly) say homosexuals can serve. A new Congress or new president could come back and reinstitute it. We need our case to survive so there is a constraint on the government to prevent it from doing this again."
During her campaign stop in Iowa in August, Bachmann told interviewer Candy Crowley on CNN's "State of The Union" when asked whether she would reinstitute the law: "It worked very well and I would be in consultation with our commanders, but I think, yes, I probably would."
Justice Department attorneys have filed a motion asking the appeals court to dismiss the case, arguing that the repeal process that will lift the ban Sept. 20 makes the lawsuit irrelevant.
The Log Cabin Republicans successfully won an injunction by U.S. District Judge Virginia Phillips last year that halted enforcement of "don't ask, don't tell" briefly, before the 9th Circuit reinstated it.
Justice Department attorneys say Phillips declared the law unconstitutional before the repeal process began, and that repeal of a statute invalidates such constitutional challenges.
But if the policy's fallout is still having an impact on people's lives then the court could still rule on the law's constitutionality, said Erwin Chemerinsky, University of California, Irvine's law school dean.
Nearly 14,000 military members have been discharged under the statute.
Woods said the government is trying to "remove the legal precedent established in our case so that anyone claiming back pay, reinstatement or a change in discharge status" could not take advantage of that and remedy the harm done by the unconstitutional law.
Woods submitted to the court the discharge paperwork of three service members who testified at last year's trial. Their paperwork bears a re-entry code stating "Not Applicable" or designating the person ineligible for re-enlistment.
Two of the service members, including former Air Force Maj. Michael Almy, are part of a separate lawsuit filed against the government demanding their reinstatement. Almy, 41, said he was discharged in 2006 after a fellow officer snooped through his government computer in Iraq.
"It is mind-boggling that throughout this case, the Obama administration has said repeatedly that it favors open military service, yet it has fought us every step of the way and is now appealing the court's judgment in our client's favor," Woods said. "The federal government should be working with us, not against us."
DOJ attorneys declined to be interviewed.
In their motion, they point out that discharged gay personnel can reapply and asked that the court throw out both lawsuits, warning any ruling could disrupt the orderly repeal process that military leaders and Congress established to ensure the change does not disrupt the armed forces during wartime.
The Defense Department says it will waive no re-entry codes for those with honorable discharges made under the policy, and they will be treated like other prior service members who are accepted based on need. All military branches are at full capacity and plan to reduce their forces.
"In keeping with long-standing traditions of deference to the judgments of military leaders concerning military matters, specific re-accession decisions — which individuals should be selected to serve in what capacities in our nation's military — should be made by military leaders, rather than this court," government attorneys said in their motion.
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