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Ninth Circuit vacates 'Don't Ask Don't Tell' ruling

The US Court of Appeals for the Ninth Circuit [official website] on Thursday unanimously vacated [opinion, PDF] a district court ruling that the "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST backgrounder] was a violation of service members' constitutional rights. Earlier this month, lawyers for the US Department of Justice (DOJ) asked the appeals court to overturn that ruling [JURIST report]. The DOJ argued that the impendency of the repeal rendered the original court case moot [LAT report]. The Log Cabin Republicans (LCR) [advocacy website], the gay rights group that sued over the policy, urged the appeals court to uphold the ruling to prevent the government from banning gay military service in the future, noting that the new Congress may repeal the repeal [Bloomberg report]. The Ninth Circuit agreed with the DOJ, holding that the suit became moot when the Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] took effect on September 20 [JURIST report], on the grounds that "the Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language." Circuit Judge Dairmuid O'Scannlain wrote a concurring opinion to say that the lower court failed to follow the Supreme Court's established law in Lawrence v. Texas [text] and created new rights for homosexuals by interpreting the decision too broadly.

In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its scheduled repeal. The court effectively reiterated its order issued the previous week [JURIST report] in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, President Barack Obama [official website], Defense Secretary Leon Panetta [official profile] and the Joint Chiefs of Staff certified [JURIST report] DADT's repeal, scheduling the policy to end September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The DADT Repeal Act was approved by the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.

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