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'Don't ask, don't tell' ruling is moot, government argues

September 1, 2011 | 12:04 pm

Government asks court to strike 'Don't Ask Don't Tell' ruling
The law banning gays from openly serving in the military expires in 19 days, so a federal judge's ruling that "don't ask, don't tell" is unconstitutional should be struck down as moot, government lawyers argued before a federal appeals court Thursday.

But the Log Cabin Republicans who sued the government over the policy seven years ago urged the U.S. 9th Circuit Court of Appeals to uphold the ruling, arguing that it is needed to redress the professional harm inflicted on thousands of soldiers and sailors discharged over the last 17 years for being homosexual.

Dan Woods, a lawyer for the Log Cabin Republicans, warned the judges that without the precedent-setting ruling last year by U.S. District Judge Virginia A. Phillips that "don't ask, don't tell" violates gay service members' free speech and due process rights, those discharged "would have to start from scratch" convincing a court that the policy was discriminatory.

Congress passed a law late last year to repeal "don't ask, don't tell" after a period of transition and retraining that concludes Sept. 20. But the "collateral consequences" of a less-than-honorable discharge, exclusion from GI Bill benefits and lost income and promotion opportunities aren't addressed by the repeal act, forcing those with claims against the government to seek relief in the courts, Woods noted.

"That's why the government is trying to wipe this case off the books," Woods said after the hearing, referring to the government's potential liability for actions deemed illegal.

Justice Department attorney Henry Whitaker asked the judges to wait until the repeal becomes effective later this month, then declare Phillips' ruling moot and have the Log Cabin Republicans' lawsuit dismissed.

Asked by the judges whether the government continues to defend "don't ask, don't tell" as a constitutional statute, Whitaker said it did.

The three 9th Circuit judges who heard arguments in Pasadena gave no indication of when or how they would rule on the matter.


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-- Carol J. Williams

Photo: A demonstration in Washington in 2009. Credit: Associated Press