As Republicans prepare to offer a series of amendments on Wednesday intended to impede repeal of the military's "Don't Ask, Don't Tell" policy, the Log Cabin Republicans, the gay group which successfully fought to have the ban overturned, have asked the 9th Circuit Court of Appeals to immediately vacate a stay imposed on an injunction barring enforcement of the gay military ban ordered last year.
Lawyers for Log Cabin Republicans told the 9th U.S. Circuit Court of Appeals in legal papers filed Tuesday that Congress still could derail the ongoing effort to rescind the "don't ask, don't tell" policy.
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A 9th Circuit panel is already considering the government's appeal of an order by a California trial judge barring enforcement of the ban. Log Cabin wants the panel to remove its hold on the order or put the case on a fast track.
Said Dan Woods, partner at White & Case and lead attorney in Log Cabin Republicans v. United States, in an email:
"We are asking the Court of Appeals to vacate its November 2010 stay of Judge Phillips's injunction because the US government is no longer arguing in its appellate briefs that "Don't Ask, Don't Tell" is constitutional, and that was the key reason for the government seeking a stay in the first place. Now that the government has abandoned that claim and no longer argues that "Don't Ask, Don't Tell" is constitutional, the Court of Appeals should vacate the stay and reinstate the district court's injunction precluding the government from enforcing or applying "Don't Ask, Don't Tell". This is especially important because "Don't Ask, Don't Tell" is still the law of our country and the government is still applying it to violate the constitutional rights of current and prospective members of our country's armed forces."
And Log Cabin Republicans Executive Director R. Clarke Cooper has condemned an amendment being proposed by Rep. Duncan Hunter that would delay repeal of the military's "Don't Ask, Don't Tell" policy by interfering with the certification requirements already set forth in the bill Obama signed in December, which would, after 60 days pass from certification by the president, the defense secretary, and the chairman of the Joint Chiefs, allow for implementation of open service..
Said Cooper:
"There is no appetite for the Hunter amendment, which would only distract from the comprehensive and on-going repeal implementation process. The Joint Chiefs of Staff were asked directly during the debate on 'Don't Ask, Don't Tell' repeal if they wanted a more hands on role in the certification process. They each stated that such a change was unnecessary and that they were confident that the Chairman of the Joint Chiefs would not certify until all services were prepared to move forward. This isn't about what the joint chiefs want – it's about pandering to special interest groups and a stubborn refusal to recognize America is ready to grant all of our men and women in uniform the respect and freedom they deserve. This question has been asked and answered. It's time to move on.
"That political posturing continues to plague implementing repeal of 'Don't Ask, Don't Tell' demonstrates the ongoing importance of the Log Cabin Republicans lawsuit which unequivocally proved that this failed policy was and is an affront to our constitution. With the implementation process proceeding smoothly and the military successfully preparing for open service, there is no reason for the threat of discharge to continue to hang over gay servicemembers. Therefore, Log Cabin Republicans are calling for the Ninth Circuit Court of Appeals to lift the stay on the permanent injunction against enforcing DADT."
Cooper has also sent a letter invoking "the shared military service that he shares with Hunter, a Marine Corps veteran of Iraq and Afghanistan," to the lawmaker asking him to drop the amendment.
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