SAN FRANCISCO — The Obama administration may have concluded that laws targeting gay Americans are presumably unconstitutional, but it still asked a federal appeals court Friday to refrain for now from striking down the ban on gays serving openly in the military, court documents state.
Justice Department lawyers asked the 9th U.S. Circuit Court of Appeals in San Francisco to give the Pentagon time to train troops and take other steps Congress outlined in December, when it cleared the way for the "don't ask, don't tell" policy to be repealed.
The request was made in the government's opening brief challenging a Southern California trial judge who in September declared the "don't ask, don't tell" policy unconstitutional.
"This case is thus now in a different posture," Assistant Attorney General Tony West wrote for the administration. "That statute is now undergoing a repeal process subject to a more recent law duly enacted by Congress and signed by the President."
The relevant question now before the 9th Circuit, West maintained, is not whether "don't ask, don't tell" is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal.
The brief was submitted in a case filed six years ago by Lob Cabin Republicans, a gay rights group that argued that forcing gay service members to keep their sexual orientations secret if they did not want to be discharged violated their First Amendment rights, among others.
U.S. District Judge Virginia Phillips agreed and issued a worldwide injunction barring enforcement of "don't ask, don't tell." The appeals court subsequently imposed a stay preventing Phillips' order from taking effect.
Gay rights and conservative activists had been eager to see what the Department of Justice, which faced a Friday deadline for filing its brief, would say just two days after Attorney General Eric Holder announced the government would no longer defend the 1996 federal law that prohibits recognition of same-sex marriages.
Holder said the decision stemmed from President Obama and his conclusions that any law that treats gay people differently is unconstitutional unless it serves a compelling governmental interest.
West did not reference the administration's new position anywhere in his 56-page filing, instead arguing that Phillips had erred, largely on procedural grounds. He also suggested that laws involving the military fall into a different category from those affecting civilians.
"Congress's judgment on matters respecting military affairs is entitled to judicial deference, and, as this court noted in granting a stay pending appeal, an immediate court-ordered end to the policy would cause substantial disruption," he said.
West noted that every other appeals court that had considered the constitutionality of "don't ask, don't tell," including the 9th Circuit, had let the policy stand.
Lawyers for Log Cabin Republicans have until March 28 to respond to the government's arguments.
Dan Woods, who is representing the group, said Friday's legal filing by the Justice Department represented a major change in the government's position, even though the lawyers were arguing that "don't ask, don't tell' should remain in effect for now
"The government's brief is stunning for what it does not say," Woods said. "By not arguing merits of the constitutionality of 'don't ask, don't tell,' the government's brief, by its silence on these issues, is effectively conceding that 'don't ask, don't tell' was and is unconstitutional."
The Department of Justice previously asked the 9th Circuit to put the case on hold since the administration expects gays to be able to join and serve openly in the armed forces by the end of the year. A three-judge panel rejected that request last month, but West said that decision is not binding on the different three judges who will be assigned the broader appeal.