LOS ANGELES (Reuters) - Five days after ordering an end to the ban on openly gay men and women in the military, a U.S. court directed the Obama administration to make clear its legal position on the “Don’t, Ask, Don’t Tell” policy.
In a written order on Monday, the 9th U.S. Circuit Court of Appeals said it appeared “the United States is not prepared to defend the constitutionality” of the military’s longtime restrictions against gay men and lesbians in uniform.
A three-judge panel of the 9th Circuit Court on Wednesday upheld a lower-court decision declaring “Don’t Ask, Don’t Tell” unconstitutional and ordered the military to immediately lift the ban, despite congressional action last year to end it.
President Barack Obama in December signed into law a landmark repeal of the 17-year-old policy, but the Pentagon was given unlimited time to prepare for the sweeping change before finally implementing it.
The Pentagon has continued to enforce the restrictions during the interim, warning gays and lesbians in the armed forces that they remain subject to investigation and discharge for failing to keep their sexual orientation private.
Unwilling to wait for the Pentagon to put the repeal into effect at its own pace, the gay rights group called the Log Cabin Republicans has continued to press its challenge to “Don’t Ask, Don’t Tell” in court.
After losing its case again at the 9th Circuit on Wednesday, the Pentagon said it would comply with the appeals court and immediately halt enforcement of the ban on openly gay service members. But the administration did not make clear whether it would seek further judicial review of the matter.
Monday’s order instructs the administration to inform the 9th Circuit, as required by law, whether the government intends to submit a report to Congress outlining its decision to refrain from further defending “Don’t Ask, Don’t Tell.”
It also orders the government and the Log Cabin Republicans to present their arguments on whether the case should be dismissed, either immediately or once the Pentagon formally declares “Don’t Ask, Don’t Tell” no longer in effect.
The move comes just weeks before the military is expected to certify that the armed forces are ready for the repeal, the final bureaucratic hurdle before the policy is abolished.
“Don’t Ask, Don’t Tell” dates from 1993, when then-President Bill Clinton signed the directive into law as a compromise with the military to end an outright ban on gay service members that had been in force for decades.
More than 13,000 men and women have been expelled from the military under “Don’t Ask” since it was instituted by Clinton.
Editing by Steve Gorman and Greg McCune