SAN FRANCISCO — A federal appeals court wrestled Thursday with whether it can declare the military's ban on openly gay service members unconstitutional when the "don't ask, don't tell" policy is due to be lifted in 19 days.
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard about 45 minutes of arguments in Pasadena, Calif., from a lawyer for the gay rights group that successfully sued to overturn "don't ask, don't tell" in a lower court last year, and from a lawyer representing the federal government.
The U.S. Department of Justice argues the lower court ruling should be invalidated because the ban's coming demise has rendered the case moot. "Don't ask, don't tell" is due to be repealed Sept. 20.
But Dan Woods, an attorney for the Log Cabin Republicans, told the panel it needs to weigh in on the policy's civil rights implications because lawmakers or future administrations in Washington could decide at some point to reinstate the ban.
"Our point here is that if this case does not go forward on the merits and you don't affirm it on the merits, the government will be completely unrestrained in its ability to again ban gay service in the military," Woods said. "We have multiple presidential candidates promising as part of their campaign platforms to repeal the repeal."
Declaring the law unconstitutional would also provide a legal path for thousands discharged under the policy to seek reinstatement, back pay or other compensation for having their careers cut short or their veterans benefits withheld, Woods said.
"There are collateral consequences of 'don't ask, don't tell' that exist even after the law is repealed," he said.
Representing the government, Justice Department attorney Henry Whitaker countered that the court should not issue a decision based on speculation about what might happen in the future.