July 11, 2011 at 4:57 pm EDT | by Chris Johnson
Will Obama drop gov’t defense of ‘Don’t Ask?’

A federal appellate court on Monday directed the Obama administration to announce within 10 days whether or not it will continue to defend “Don’t Ask, Don’t Tell” in court in the wake of its decision to no longer litigate on behalf of the Defense of Marriage Act.

In an order dated July 11, the U.S. Ninth Circuit Court of Appeals states that the Justice Department must announce if it will continue to defend “Don’t Ask, Don’t Tell,” or, as was the case with DOMA, allow Congress to intervene to take up defense of the military’s gay ban.

“The Government is hereby ordered to advise the court whether it intends to submit a report to Congress … outlining its decision to refrain from defending [‘Don’t Ask, Don’t Tell’],” the order states. “The Government is further ordered, if such a 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.”

The order states that this notification must be submitted within 10 days and take the form of letters to the court no longer than 10 pages or 2,800 words in length. A Justice Department spokesperson didn’t immediately respond to the Washington Blade’s request for comment on the issue.

The executive branch of the U.S. government has the authority to refrain from defending laws in court it believes are unconstitutional, but must notify Congress to provide that body the opportunity to take up defense of such laws.

That’s the situation that played out with DOMA. On Feb. 23, U.S. Attorney General Eric Holder notified Congress the Justice Department would no longer defend DOMA because the Obama administration determined the anti-gay law was unconstitutional. Following a party-line vote from the Bipartisan Legal Advisory Group, U.S. House Speaker John Boehner (R-Ohio) directed House general counsel to defend the anti-gay law and hired private attorney and former U.S. solicitor general Paul Clement to assist in the defense.

Holder says in the letter the administration came to the conclusion that DOMA was unconstitutional because all laws related to sexual orientation — not just DOMA — should be subject to heightened scrutiny under the law. “Don’t Ask, Don’t Tell” would fall under this category.

In the wake of this determination for laws related to sexual orientation, the Ninth Circuit directs the government to clarify whether it will continue to defend “Don’t Ask, Don’t Tell.”

Dan Woods, an attorney with White & Case LLC who’s representing Log Cabin in the lawsuit, said the order in the case is “a really good thing” for opponents of “Don’t Ask, Don’t Tell.”

“It’s a really good thing that they’ve asked the government to decide whether they’re going to defend the constitutionality of ‘Don’t Ask, Don’t Tell’ or not,” Woods said. “They’re trying to have to both ways, and the Ninth Circuit is now forcing them to take an official position on that.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, also praised the Ninth Circuit for directing the U.S. government to make its position clear on “Don’t Ask, Don’t Tell.”

“The Court of Appeals for the Ninth Circuit is correctly pressing the Department of Justice and Department of Defense on whether or not they intend to defend the constitutionality of ‘Don’t Ask, Don’t Tell,'” Sarvis said. “It is our hope they will not continue to do so, and we will soon have finality with certification and repeal.”

In the order, the Ninth Circuit also notes that the U.S. government hasn’t asserted “Don’t Ask, Don’t Tell” in its most recent legal briefs defending the statute and observes that the gay ban is active despite the repeal law that was signed last year.

“Therefore, the central issue this court must address on appeal is whether the district court properly held that [‘Don’t Ask, Don’t Tell’] is unconstitutional,” the order states. “No party to this appeal has indicated an intention to defend the constitutionality of [‘Don’t Ask, Don’t Tell’] or to argue that the constitutionality holding of the district court should be reversed.”

Under the repeal law signed in December, “Don’t Ask, Don’t Tell” won’t be off the books until 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staffs certify the military is ready for open service. Troops have been undertaking training to prepare for “Don’t Ask, Don’t Tell,” but certification has yet to take place.

In addition to ordering the U.S. government to declare whether it will continue defending “Don’t Ask, Don’t Tell,” the Ninth Circuit directs both parties in the case — plaintiffs and defendants — to explain why the case shouldn’t be considered moot in the wake of passage of repeal legislation.

Woods said he’s prepared to refile briefs explaining why the litigation should remain ongoing to comply with the court order.

“We’re happy to brief this again and we don’t think the case is going to be moot, we don’t think it should be dismissed because, among other things, there’s still this talk about repealing the repeal [in Congress],” Woods said. “There’s a bill pending to repeal the repeal. That should make it clear that this case shouldn’t be dismissed.”

The order comes after a three-judge panel on the Ninth Circuit on Wednesday reinstituted an injunction prohibiting the federal government from enforcing “Don’t Ask, Don’t Tell” as a result of the case, known as Log Cabin Republicans v. United States. On Friday, the Pentagon issued a moratorium on discharges under the gay ban to comply with this court order.

Observers are still awaiting the decision from the Justice Department on whether it will appeal the decision to reinstate the injunction.

“We don’t know that,” Woods said. “They haven’t decided that yet. We haven’t heard from the government one way or the other whether they’re going to seek some further review of last week’s Ninth Circuit order.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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