Justice Department seeks to keep enforcing ‘don’t ask, don’t tell’ for now

The Obama administration asked a federal appeals court late Thursday to suspend its decision last week ordering an end to enforcement of the military’s “don’t ask, don’t tell” policy, which bars gay people from serving openly in the armed forces.

The Justice Department argued that the government wants to stick with the timetable set in last year’s congressional action to repeal “don’t ask, don’t tell.” It provides a grace period for retraining to integrate gay service members, and a 60-day evaluation to certify that the change won’t hurt military readiness.

Continuing to enforce the policy is necessary until that review is completed, a government attorney argued.


Under the deferred repeal, President Obama, the Defense secretary and the chairman of the Joint Chiefs of Staff must sign off on the certification that the military is thoroughly prepared for the change.

“Judicial deference is at its apogee when Congress legislates under its authority to raise and support armies,” the government said in its 30-page legal brief, quoting constitutional language. In its motion to the U.S. 9th Circuit Court of Appeals, the government focused on the separation of powers, rather than a defense of the policy’s merits.

The appeals court announced July 6 that it was lifting a hold it placed last year on a federal district judge’s ruling that “don’t ask, don’t tell” violates the Constitution and should be immediately ended. That action “reimposes the district court’s worldwide injunction on the Defense Department, preempting the orderly process for repealing” the statute, the Justice Department said, requesting that the appeals court suspend its latest decision by Friday.

Dan Woods, lead attorney for the Log Cabin Republicans gay rights organization, which sued the Pentagon over the policy seven years ago, called the latest filing in the legal battle “sad” and “a last-ditch effort to maintain this unconstitutional policy.”