The 9th Circuit U.S. Court of Appeals issued yet another order this month, this time giving the federal government 10 days to "show cause" why the court should not dismiss as moot an appeal seeking to defend "Don't Ask, Don't Tell."
The court's order, issued July 11, gives the federal government, the House of Representatives, and other parties 10 days to submit their arguments.
The order came just five days after a 9th Circuit panel ordered the Department of Defense to stop enforcement of "Don't Ask, Don't Tell" ( DADT ) , the federal law banning openly gay people from serving in the military.
"Today's order forces the government to state, once and for all, its position on the constitutionality of DADT," said Dan Woods, attorney representing Log Cabin Republicans in Log Cabin Republicans v. U.S. In that lawsuit, a federal district court in California ruled last September that DADT is unconstitutional and ordered the government to stop enforcing the law. The Department of Justice appealed that ruling to the 9th Circuit and asked the appeals court to delay the district court's order that the Department of Defense stop enforcing DADT.
The 9th Circuit granted to request to delay enforcement of the district court's order, but, on July 6, reversed that stay.
All this comes against a political backdrop in which Congress has passed and President Obama has signed a law repealing DADT but the law remains in force until 60 days after the president, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff submit written certification that the military is ready to implement repeal without detriment to military readiness.
"In our view," said Woods, "the government has been evading that important issue for too long and today's order forces the government to 'fish or cut bait'."
The order was not signed by any specific 9th Circuit judges but ordered the government to advise the court as to whether it intends to notify Congress that it will not defend the constitutionality of DADT. If the government does not defend DADT, said the court, the court "may allow" some third party to do so.
Servicemembers Legal Defense Network issued a statement saying it hopes DOJ and DOD "will not continue" to defend DADT "and we will soon have finality with certification and repeal."
Meanwhile, in a mostly symbolic gesture, the Republican-led House of Representatives voted 236 to 184 on July 8 to prohibit military chaplains from performing marriage ceremonies between same-sex partners on military bases. DADT repeal.
"Repealing Don't Ask, Don't Tell was supposed to be about allowing people in the military to serve openly," said the amendment's author, Rep. Tim Huelskamp ( R-Kansas ) , "not about promoting same-sex marriages in contravention of the Defense of Marriage Act."
Echoing a phrase that has been in use recently by Republican opponents of same-sex marriage, Huelskamp also said the amendment would promote "consistency" of marriage laws around the country.
The language was approved as an amendment to the Fiscal Year 2012 appropriations bill for the DOD.