SAN DIEGO – A federal appeals court that has called for the immediate halt of the military’s ban on openly gay troops issued an order Monday requiring the U.S. government to state whether it will continue to defend the policy’s constitutionality in court.
Monday’s order comes less than a week after the 9th U.S. Circuit Court of Appeals in San Francisco told the Obama administration to immediately cease enforcing the “don’t ask, don’t tell” policy, which could speed up its repeal.
The ruling stems from a lawsuit filed by the Log Cabin Republicans against the Department of Justice.
The gay rights group last year persuaded a lower court judge to declare the ban unconstitutional after a trial that put the Obama administration in the position of defending a policy it opposes.
DOJ attorneys have said they are defending the policy in court as they do with any law that is being challenged. They also have said the issue should be decided by Congress and not the courts.
The three-judge merits panel of the 9th Circuit said after reviewing briefs from both parties in the case, that it appears the government is not prepared to defend the policy’s constitutionality.
The order was not signed by the judges.
Log Cabin Republicans attorney Dan Woods said the court is forcing the government to take a stand. “Now the government is not going to be allowed to have it both ways anymore,” Woods said. “The court is saying either fish or cut bait.”
DOJ spokeswoman Tracy Schmaler said the department is reviewing the judges’ order and had no immediate comment.