The US Court of Appeals for the Ninth Circuit [official website] Wednesday denied a petition for rehearing [order, PDF] regarding its unanimous decision to vacate 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. The court had overturned the lower court's ruling [JURIST report] at the request of lawyers for the US Department of Justice (DOJ), who argued that the recent Congressional repeal of DADT had rendered the original court case moot [JURIST reports]. 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:
The panel's sweeping, and unnecessary, vacatur order eradicates over a dozen thoughtful district court rulings, including factual findings after a full bench trial. It not only condemns any future servicemember who may claim injury from an unconstitutional discharge under DADT to re-litigate the entire factual basis for this lawsuit, at an enormous cost in judicial resources, but it calls into public question the very validity of the proceedings below, which were held and concluded before the Repeal Act was enacted. Resolution of these issues is vital to public confidence in the adequacy, transparency, and correctness of the judicial process.The Ninth Circuit vacated the district court's decision 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grounds that "the Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language." The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] took effect on September 20 [JURIST report].
In July, the Ninth Circuit had 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.