Bloomberg News

‘Don’t Ask, Don’t Tell’ Ruling Is Moot, U.S. Tells Court

September 01, 2011

(Updates with comment from U.S. lawyer in fourth paragraph.)

Sept. 1 (Bloomberg) -- The U.S. asked a federal appeals court to vacate as moot the ruling by a federal judge last year that the military’s “Don’t Ask, Don’t Tell” ban on openly gay and lesbian service members is unconstitutional.

A panel of the U.S. Court of Appeals heard the government’s arguments today in Pasadena, California. The judges last month asked President Barack Obama’s administration to explain why the appeal shouldn’t be dismissed after Congress repealed the 1993 law last year.

Obama, Defense Secretary Leon Panetta and Navy Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, on July 22 signed the certification attesting that the U.S. Defense Department is prepared to repeal the ban. That certification ends enforcement of “Don’t Ask, Don’t Tell” as of Sept. 20.

“That’s the end of the case,” Henry Whitaker, a lawyer for the Justice Department, told the judges. “There’s nothing left for the court to do.”

Whitaker said after Sept. 20, the court should declare the case moot and order the judge who ruled on the constitutionality of the statute to vacate her ruling.

U.S. District Judge Virginia Phillips in Riverside, California, ruled last year that the law establishing the policy violated constitutionally protected rights to due process and free speech. The appeals court delayed enforcement of the judge’s order while the administration appealed her decision.

‘Repeal the Repeal’

Dan Woods, a lawyer for the Log Cabin Republicans, the group who brought the lawsuit challenging the ban, said the appeals court should uphold Phillips’s ruling on its merits and not declare the case moot. It’s important, because the legal precedent it sets, that the ruling remains on the books, the lawyer said.

“If it’s not affirmed on the merits, the government can again restrict gays in the military,” Woods told the judges. “The new Congress may repeal the repeal.”

Woods also said that multiple Republican presidential candidates have said they would seek to undo the repeal of “Don’t Ask, Don’t Tell” if they are elected. In addition, if the law is affirmed, it will help military personnel who were discharged under the the law to seek benefits they are now denied because they weren’t honorably discharged, the lawyer said.

The judges took the appeal under submission without indicating whether they would rule on the merits of Phillips’s ruling or only on the question whether the case is moot as of Sept. 20.

The case is Log Cabin Republicans v. U.S., 10-56634, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

--Editors: Peter Blumberg, Andrew Dunn

To contact the reporter on this story: Edvard Pettersson in Los Angeles at

To contact the editor responsible for this story: Michael Hytha at

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