Late Thursday, the Obama Administration decided — even as the Pentagon is on the verge of scrapping the ban on openly gay men and women serving in the military — that it wants the judiciary to steer clear of ordering the 17-year old law unconstitutional. It’s a technical hiccup, but what it means is that the Obama Administration — having spent a lot of political capital getting Congress to overturn the law last year — doesn’t want a federal judge, or a panel of them, overturning the law unilaterally.
That’s why government lawyers petitioned the 9th U.S. Circuit Court of Appeals and asked it to vacate its order barring enforcement of the ban. “The Armed Forces are moving forward expeditiously to prepare for the repeal of § 654 [“Don’t Ask, Don’t Tell”] in a fashion that Congress and the President consider the most effective way possible, and consistent with the Nation’s military needs,” the filing said. The Justice Department issued a statement saying it wants “to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal.” It added that “senior military leaders are expected to make their decision on certifying repeal within the next few weeks.” Gay advocacy groups, no surprise, are not pleased.