(CN) – The Republican organization dedicated to gay rights asked the 9th Circuit to vacate an order that has let the U.S. military’s “Don’t Ask, Don’t Tell” policy remain in effect, even though Congress repealed the policy.
After a federal judge ruled issued a nationwide injunction blocking the policy in October 2010, the 9th Circuit agreed to stay that injunction pending appeal and the Supreme Court affirmed.
Then in December, President Barack Obama signed a law passed by Congress that repealed the ban on gay men and lesbians serving openly in the military.
Each party to the lawsuit then submitted briefs to the 9th Circuit. The government asked the court to suspend the appeal, while the group dedicated to striking down the ban, the Log Cabin Republicans, took another tack.
After defending their standing, the Log Cabin Republicans asked the 9th Circuit to affirm the injunction, reverse the trial court’s dismissal of its equal-protection claim and remand that aspect of the case for further proceedings.
In a new 23-page filing Tuesday, the gay rights group moved to vacate the stay.
“The briefing makes clear that the government has abandoned that claim and no longer argues that Don’t Ask, Don’t Tell is constitutional,” according to the motion authored by Dan Woods with White & Case. “Accordingly, the government cannot show a likelihood of success on the merits and there is no basis to stay the district court’s judgment. While the stay is in effect, the government remains free to, and does, conduct investigations and discharges, and otherwise violate the constitutional rights of current and prospective members of our armed forces, under an unconstitutional statute.”
The Log Cabin Republicans noted that the government opposes this motion.