A federal appeals court has refused to decide the constitutionality of the now-repealed "Don't Ask, Don't Tell" policy that bans openly gay troops, saying the issue is "moot" since gays and lesbians can now legally enlist and serve. The ruling by the 9th Circuit Court of Appeals denies gay rights advocates "an important legal precedent" that they had argued should be preserved, reports CNN.
The three-judge panel said the case was essentially moot since the military's enforcement of the policy ceased nine days ago, after a Pentagon-led transition period that followed repeal of the 1993 law by Congress last year. "The repeal of Don't Ask, Don't Tell provides Log Cabin (Republicans) with all it sought and may have had standing to obtain," wrote the judges in a 21-page ruling.
By so ruling, the 9th Circuit U.S. Court of Appeals avoided deciding the larger question of whether the policy violated the constitutional due process rights of gays and lesbians who are serving or who wanted to serve the armed forces. ...
The Log Cabin Republicans' lawsuit became part of the back-and-forth legal and political dealings that took place in the months leading up to the demise of the policy. Federal courts -- including the Supreme Court -- dealt with the question of whether the law should continue to be enforced during the transition, ignoring the larger questions of its constitutionality.
The constitutional ruling is still needed, reports the Washington Blade.
Even though “Don’t Ask, Don’t Tell” has been lifted, plaintiffs continued with the litigation on the basis that a ruling that the ban was unconstitutional would prohibit future reinstatement of the law. Republican presidential candidates Michele Bachmann and Rick Santorum have said they’d reinstitute “Don’t Ask, Don’t Tell” if elected to the White House.
A ruling that “Don’t Ask, Don’t Tell” was unconstitutional could also aid service members discharged under the law seeking back pay, reinstatement or a change in discharge status. The decision came down from the Ninth Circuit panel after the U.S. Justice Department asked the court to dismiss
The lawsuit in the wake of the end to "Don’t Ask, Don’t Tell." R. Clarke Cooper, executive director of the National Log Cabin Republicans, said President Obama “should be ashamed that he is responsible” for taking part in the undoing of the district court’s decision on the matter.
On September 9 2010, U.S. District Judge Virginia Phillips issued her landmark ruling when she declared the 1993 law unconstitutional after a two-week trial in Riverside. Ruling in Log Cabin Republicans v the United States of America, Judge Phillips said the policy violated the First and Fifth Amendment rights of gay and lesbians.
In addition to dismissing the lawsuit, today's decision vacates Judge Phillips' injunction against government from enforcing the military’s gay ban.