A lawsuit challenging the nation’s now-discontinued policy of barring openly gay people from military service was dismissed by a federal appeals court in San Francisco Thursday.
The 9th U.S. Circuit Court of Appeals said the suit filed by Log Cabin Republicans, a gay rights group, in 2004 is now moot because the so-called “Don’t Ask, Don’t Tell” policy has been repealed.
The repeal was passed by Congress and signed by President Obama last December and went into effect on Sept. 20.
“The repeal, in short, gave Log Cabin everything its complaint hoped to achieve,” the court said in a unanimous ruling by a three-judge panel.
The panel also set aside a decision in which U.S. District Judge Virginia Phillips of Los Angeles last year concluded that the policy was unconstitutional and an injunction blocking its implementation.
The panel said that ruling is now void and can’t be used as a precedent in future court proceedings.
Lawyers for Log Cabin Republicans had asked the court to keep Phillips’ decision on the books as a precedent in case Congress ever re-enacts the policy it established in 1993.
But the appeals court said any re-enacting of the measure is a speculative matter and must be left to future litigation.
Dan Woods, a lawyer for Log Cabin Republicans, said the group will appeal to the full 9th Circuit Court to reconsider the case.
“This is an important issue for all Americans,” Woods said.
The former policy prohibited military officials from asking about service members’ sexual orientation, but required the discharge of any who declared themselves to be gay or lesbian or engaged in homosexual activity.
About 14,000 gay and lesbian service members were discharged between 1993 and this year as a result of the policy.
After Phillips issued the injunction against Don’t Ask, Don’t Tell in October 2010, the U.S. Justice Department appealed to the 9th Circuit.
Government lawyers acknowledged that the Obama Administration was seeking repeal of the policy, but argued it would be disruptive to end it abruptly by allowing the injunction to go into effect.
After the repeal was enacted by Congress and signed by Obama in December, the Justice Department modified its appeal to ask the court to ask for dismissal of the lawsuit and the lower court ruling.
Members of Log Cabin Republicans claim that Phillips’ decision last year was a catalyst in causing Congress to act.
“The ruling in Log Cabin Republicans v. United States is the reason why Congress finally acted to end this failed and unconstitutional policy,” said Log Cabin Republicans executive director R. Clarke Cooper.
“The court can vacate this ruling, but that does not change the fact that ‘Don’t Ask, Don’t Tell’ was unconstitutional,” Cooper said.
Julia Cheever, Bay City News
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