Federal Judiciary

Month delay of ?don?t ask? appeal

By Lyle Denniston

The Ninth Circuit Court has turned down the Obama Administration’s request to put on hold the case testing the constitutionality of the “don’t ask/don’t tell” law restricting the right of gays to serve in the military.  In a one-page order, issued Friday, however, the Circuit Court added another month to the time before the briefing schedule is to begin.  That was the Administration’s alternative plea.

A federal judge in California has struck down the 1993 law that bars gays and lesbians from serving openly in U.S. military services.   Congress, however, has repealed that law, but the repeal will not go into effect until sometime later this year, while the Pentagon makes plans for training so that troops adjust to the repeal situation.  President Obama said in his State of the Union message last week that the military ban would end this year.

In the meantime, the Administration asked the Ninth Circuit to hold in abeyance its review of the case pending there (Log Cabin Republicans v. U.S., et al. (docket 10-56634), to enable the Pentagon to proceed with its preparations.  If the Court did not do so, the Administration asked for a delay of a month in the briefing schedule.

Denying the motion to hold the case in a standstill mode,  the Circuit Court did stretch out the briefing schedule, so that the government’s brief is now due on Feb. 25, instead of Jan. 24.  (The earlier briefing schedule had been suspended temporarily while the Circuit Court considered the Administration’s requests.)  Under the new schedule, briefing is expected to be completed by mid April.

It is doubtfult that the Pentagon will have completed its preprations by then.  And, in any event, the repeal law does not go into effect until 60 days after Congress is formally advised that the military is ready for the change.   It thus seems likely that the Circuit Court could have a ruling on the constituitonal question before repeal actually occurred.

At a Pentagon briefing Friday for news reporters, officials involved in planning for repeal indicated they were making progress.  A Defense Department news story discussing the briefing can be read   here,  The Washington Pos’s story on the briefing is here.  The full transcript of the briefing is here.

Full post as published by SCOTUSBLOG on January 29, 2011 (boomark / email).