The U.S. 9th Circuit Court of Appeals yesterday issued an order requiring the Obama Administration to clarify its position on "Don't Ask, Don't Tell." The district court held the law unconstitutional, and Congress has enacted a repeal of policy which becomes effective when the President, Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that certain conditions have been met. (See
prior posting.) In
Log Cabin Republicans v. United States, (9th Cir., July 11, 2011), the 9th Circuit said:
No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed.
The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C §530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute)....If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality....
The government was ordered to advise the court whether it intendes to submit a §530D report to Congress in a timely manner so Congress can intervene. The parties were also ordered to show cause why the case should not be dismissed as moot, at least once the Congressional repeal takes effect.
National Law Journal reports on the court's order.
