Noteboom The Law Firm

“Don’t Ask Don’t Tell” Still Enforceable For Now

November 2, 2010 - The "Don't Ask Don't Tell" legal albatross has one more court's decision under its belt. Yesterday the 9^th Circuit Court of Appeals accepted the government's argument and ruled the "Don't Ask Don't Tell" law will remain enforceable while the government appeals a lower court's holding that "Don't Ask Don't Tell" is unconstitutional.

The Log Cabin Republicans initially filed the lawsuit challenging the constitutionality of the "Don't Ask Don't Tell" law. With the Circuit Court's ruling, they can now appeal to either the 9^th Circuit Appellate Court, or to the U.S. Supreme Court. If they choose to appeal to the Supreme Court, they would have to file a claim for emergency relief.

Monday's panel explained how they used a weighing test to come to their 2-1 decision. On one hand there is the harm to the military in being forced to accommodate the immediate subsequent transition should they be told to no longer enforce the law. On the other hand there is the harm in driving on and enforcing the law.

The government argued that should the law become immediately unenforceable, there would be no hope for a smooth transition. Further, there would be "immediate harm and precipitous injury." In weighing the harm, the panel found there was a strong public interest in ensuring the transition is organized and in order. 

The House has already passed a provision repealing the "Don't Ask Don't Tell" law and the Senate will likely consider it when they reconvene. If the law is repealed, the panel's holding becomes moot.