POSTED: 1:30 a.m. HST, Jan 30, 2011
SAN FRANCISCO » A federal appeals court has denied the government's request to suspend a lawsuit challenging the military's ban on openly gay service members.
The 9th U.S. Circuit Court of Appeals in San Francisco issued an order Friday requiring the Department of Justice to file papers by Feb. 25 arguing why the court should overturn a Southern California trial judge who declared the "don't ask, don't tell" policy unconstitutional.
Government lawyers asked the 9th Circuit earlier this month to set aside the case because the Pentagon was moving quickly to satisfy the steps Congress outlined last month when it voted to allow the ban's repeal. A Justice Department spokeswoman said it had no comment Saturday.
The appeals court did not explain in its order why it rejected the request. In his State of the Union address, President Barack Obama said he expected to finalize the repeal and allow openly gay Americans to join the armed forces before the end of the year.
On Friday, the vice chairman of the Joint Chiefs of Staff told reporters that the training of officers and troops the Pentagon has said is a predicate to full repeal would begin in February.
The Log Cabin Republicans, the gay political group whose lawsuit challenging "don't ask, don't tell" persuaded District Court Judge Virginia Phillips in September to enjoin the military from enforcing the policy, had opposed the government's effort to put the case on hold.
R. Clarke Cooper, the group's president, said Saturday that while he thinks the Pentagon's efforts are sincere, the case should proceed as long as gay servicemembers still can be discharged.
"We said all along to the government we would drop our case if they would cease all discharges and remove all barriers to open service," Cooper said.
Cooper, an Army reserve officer, said he knew of at least one service member facing a discharge hearing next month, even as the Pentagon moves forward with its training plan.
"We are not questioning the implementation process. We recognize the need for a deliberative process for implementing proper training materials and guidances for leadership," he said. "But when you have a servicemember going before a discharge panel, this is kind of a 'left hand-right hand' thing that is happening."