July 11, 2011
Ninth Circuit to Federal Government: State Your Intentions Regarding Defending the Constitutionality of DADT
In a brief order today from the Clerk of the Court of the Ninth Circuit in Log Cabin Republicans v. United States, the Ninth Circuit essentially asks the federal government to state its intentions.
Just last week the Ninth Circuit lifted the stay of the district judge's injunction against the enforcement of the military's "don't ask, don't tell" policy relating to sexual orientation.
Today's order provides that after "reviewing the briefs filed by the parties, it appears to the merits panel
that the United States is not prepared to defend the constitutionality" of the don't ask, don't tell statute, 10 U.S.C. § 654. The order continues:
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); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011). 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 pursuant to Federal Rule of Appellate Procedure 29(g).
The parties have ten days to respond by letter (not more than 10 pages or 2800 words!) as follows:
(1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654;
(2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2);
(3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied.
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