SAN FRANCISCO — A federal appeals court wrestled Thursday with whether it can declare the military's ban on openly gay service members unconstitutional when the "don't ask, don't tell" policy is due to be lifted in 19 days.
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard about 45 minutes of arguments in Pasadena, Calif. from a lawyer for the gay rights group that successfully sued to overturn "don't ask, don't tell" in a lower court last year, and from a lawyer representing the federal government.
The U.S. Department of Justice argues the lower court ruling should be invalidated because the ban's coming demise has rendered the case moot. "Don't ask, don't tell" is due to be repealed Sept. 20.
But Dan Woods, an attorney for the Log Cabin Republicans, told the panel it needs to weigh in on the policy's civil rights implications because lawmakers or future administrations in Washington could decide at some point to reinstate the ban.
"Our point here is that if this case does not go forward on the merits and you don't affirm it on the merits, the government will be completely unrestrained in its ability to again ban gay service in the military," Woods said. "We have multiple presidential candidates promising as part of their campaign platforms to repeal the repeal."
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 or their veteran' benefits withheld, Woods said.
"There are collateral consequences of `don't ask, don't tell" that exist even after the law is repealed," he said.
Representing the government, Justice Department attorney Henry Whitaker countered that the court should not issue a decision based on speculation about what might happen in the future.
If discharged service members want to sue for reinstatement or damages, as several already have, those cases would be the appropriate venue for exploring the ban's constitutional implications, Whitaker said.
"Even today, the military is accepting applications from gay and lesbian individuals to serve in the armed forces, including from gays and lesbians who were discharged," he said, acknowledging the case will not be "technically moot" for another few weeks.
"No matter how you slice it, even today, there is no case or controversy."
Whitaker asked the panel to wait until Sept. 20 or after to issue an order dismissing the case and vacating U.S. District Court Judge Virginia Phillips' ruling from last September that found "don't ask, don't tell" violates the due process and First Amendment rights of gay service members. If the three judges do otherwise, he said, the government could appeal to the U.S. Supreme Court.
Two of the panel's judges, Circuit Judge Dairmuid O'Scannlain of Portland and Senior Circuit Judge Arthur Alarcon of Los Angeles, gave no indication of which way they were leaning.
The third, Circuit Judge Barry Silverman of Phoenix, pressed Woods on why the court should weigh in now when the ban is weeks away from becoming history.
"You hear a lot about judicial activism, particularly here in the 9th Circuit, so I wonder if there is not a public interest in letting this case run its course," Silverman said.
Log Cabin Republicans successfully won an injunction from Phillips in a Riverside, Calif., Court last year that halted enforcement of "don't ask, don't tell" briefly as Congress was debating doing away with the policy. Nearly 14,000 military members have been discharged under the statute.
The 9th Circuit allowed the government to keep the policy in place while it considered the government's appeal, but in July told the government it was no longer allowed to investigate, penalize or discharge anyone who was openly gay.
O'Scannlain asked Whitaker if the government would continue to defend the gay ban, as it has throughout the Log Cabin litigation, if the 9th Circuit panel declined to dismiss the case. Whitaker said it would, since the U.S. Constitution clearly gives Congress authority "to raise and support its armies."
"Whatever current law is, we have been defending it," he said.
Richard Socarides, an adviser on gay rights to former President Bill Clinton, under whose administration "don't ask, don't tell" was enacted, said the government's position was surprising since President Barack Obama has backed the policy's repeal.
"Anyone focused on ending this policy for good should want (Phillips') ruling to stand on appeal," Socarides said Thursday. "It's an important statement about who we are as a country and our values – values that say discrimination is unconstitutional. It's not enough to say we repealed it. We need to declare it wrong, unconstitutional and illegal."
Watson contributed to this report from San Diego.