Despite Repeal Of Military Policy Prohibiting Openly Gay Service Personal The Justice Department Requests Ninth Circuit Court Of Appeals Uphold Ban

Despite a repeal of the military policy prohibiting openly gay service personal, the Obama Administration Friday requested that a federal appeals court to refrain from striking down the ban, according to a report by the Associated Press. Justice Department attorneys asked the Ninth United States Circuit Court of Appeals in San Francisco to allow the Pentagon time to train troops and take other steps Congress outlined in December, when it agreed to repeal the policy known as "don't ask, don't tell.” 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 Ninth Circuit Court, West argued, 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 ordering gay service members to keep their sexual orientations secret if they did not want to be discharged violated their First Amendment rights, among others. United States 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 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, and 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, noting that every other appeals court that had considered the constitutionality of "don't ask, don't tell," including the Ninth Circuit Court, had let the policy stand. Attorneys for the Log Cabin Republicans have until March 28th to respond to Friday’s filing.