(CN) – In conceding that the military’s “Don’t Ask, Don’t Tell” policy was unconstitutional,while trying to stay its own appeal of an injunction against that policy, “the government effectively sweeps under the rug the fact that over 13,000 service members have been unconstitutionally discharged under DADT and thousands more have lived – and continue to live today – under the threat of investigation and discharge simply for being who they are,” the Log Cabin Republicans wrote in an 84-page opening brief Monday with the 9th Circuit.
A federal judge in Riverside, Calif., entered a permanent worldwide injunction in October 2010 against the law, which bans gays and lesbians from serving in the U.S. military, one month after finding the policy unconstitutionally violated the First Amendment and due process under the Fifth Amendment. The Supreme Court ruled a month later that the ban could be enforced pending the 9th Circuit’s consideration of the appeal.
The government had argued in its brief last month that the 9th Circuit should suspend the appeal because the issue will soon become moot in light of Congress’ recent vote to repeal the policy, which President Barack Obama signed on Dec. 22. It also argued that the injunction should be reversed on appeal because the Log Cabin Republicans lack standing and the District Court exceeded its authority by “entering an injunction in this case precluding the government from enforcing [the policy] against any individual anywhere in the world,” according to the brief.
The Log Cabin Republicans, a gay and lesbian advocacy group that challenged the law in 2004 in a California federal court, argue that they do in fact have standing and that the 9th Circuit should affirm the injunction. “Log Cabin further requests that this Court reverse the district court’s dismissal of Log Cabin’s equal protection claim and remand that aspect of the case to the district court for its decision in the first instance whether the evidence it received at trial also requires a finding that Don’t Ask, Don’t Tell violates the equal protection component of the Fifth Amendment,” the brief states.