In an order entered by the U.S. Ninth Circuit Court of Appeals on Monday, the court set the schedule for the appeal of the Log Cabin Republicans v. United States, a step the government set in motion when it filed a Notice of Appeal on Oct. 14 of U.S. District Court Judge Virginia Phillips's decision striking down the military's "Don't Ask, Don't Tell" policy.
According to the order, the government will not be required to file its appeal brief until Monday, Jan. 24, 2011. The attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing. (The reason for what may seem like "lag time" to some is that, unlike in the challenge to Proposition 8 in Perry v. Schwarzenegger, none of the parties here have requested an expedited appeal. At least, not yet.)
The most important fact to be gleaned from this schedule is the government will have seven weeks after the Dec. 1 report is due from the Pentagon working group reviewing DADT repeal implementation before it needs to file any substantive response to Phillips's September decision declaring DADT unconstitutional. What's more, this deadline falls well after the end of the "lame-duck" session of the 111th Congress, when legislative repeal of 10 U.S.C. 654 -- the DADT law -- could be finalized. This schedule, in other words, gives the Obama administration the room to end DADT before needing to defend DADT on appeal.
Whether the administration will succeed in ending DADT before that, however, remains to be seen.
Christian Berle, deputy executive director of LCR, wrote to Metro Weekly in a statement about the schedule, "Log Cabin Republicans is ready and able to defend this ruling, and the rights of all servicemembers, all the way to the United States Supreme Court, if necessary.
"We expect that the Ninth Circuit will once again recognize the fundamental liberty at stake with this failed policy as it did in Witt v. Department of the Air Force in 2008. Log Cabin Republicans has always pursued a multi-front strategy, aggressively supporting legislative action while challenging President Obama and his attorneys in court to uphold these basic, constitutional rights."