It has done so, though, in a rather remarkable way: It changed the question of what the lawsuit is. Noting that "[t]he repeal process is well under way," the government argues that the appellate court should not be deciding whether DADT is constitutional but should instead be deciding whether the DADT repeal process is constitutional.
The government, in fact, doesn't even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.
In September 2010, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order in the LCR case that halted enforcement of the law for several days.
The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set today as the deadline for the DOJ to file its brief defending DADT.
The government filed its brief tonight, arguing that the novel path it has urged the court to take is correct because, following the passage of the DADT Repeal Act, "[t]his case is thus now in a different posture than when it was at the time of the entry of the injunction now under review."
As noted above, the government is presenting the Ninth Circuit with a dramatically different argument on appeal than it had presented (see "update") less than a year ago to the trial court. The questions, the government argues tonight, for the Ninth Circuit on appeal are:
1. Whether plaintiff, which asserts standing solely based on alleged injuries to an unnamed individual and to an individual provided “honorary membership” in the organization, has organizational standing to bring this lawsuit.
2. Whether Congress lacked the constitutional authority to establish an orderly process for repeal of § 654, while keeping the former statute in place and maintaining the status quo during the transition in policy.
3. Whether the district court exceeded its remedial authority in enjoining the federal government from applying a federal statute and its implementing regulations to any individual anywhere in the world.
Read Number 2 again. The government is arguing that the Ninth Circuit does not need to address whether 10 U.S.C. 654 is constitutional, but rather whether the process for repealing it is constitutional. Under the DADT Repeal Act, repeal of 10 U.S.C. 654 occurs 60 days after the president, Defense secretary and chairman of the Joint Chiefs of Staff certify to Congress that the changes needed to implement repeal are "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." The passage of the DADT Repeal Act, though, the government argues, makes this an entirely different case.
As Log Cabin argued in response to the government's request to hold the case in abeyance for this reason, the law is still in effect until the law is repealed. "During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality," lawyers for LCR wrote in January. "It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises."
In the second section of the brief, the government briefly notes that courts have upheld DADT as constitutional in the past and that the government argued so earlier in this case:
Before Congress enacted the Repeal Act and established an orderly process to repeal § 654, all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of § 654 against both substantive due process and First Amendment challenges. As we noted in our stay motion, “the ‘detailed legislative record’ that Congress assembled in enacting § 654 ‘makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security.’” Gov’t Stay Mtn. 9 (quoting Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008)). As our stay motion also noted, this Court sustained the facial constitutionality of the prior, more restrictive version of the policy in Beller, and the validity of that holding was not altered by this Court’s later decision to apply heightened scrutiny to § 654 in Witt, which involved an as-applied challenge. See Gov’t Stay Mtn. 10-11. It follows with even greater force that Congress constitutionally determined in the Repeal Act that an orderly transition in policy justified maintaining the status quo and leaving § 654 in place while the Department of Defense completes the necessary preparations for repeal.
That is it. It does not advance the argument anew on appeal, nor does the brief explicitly adopt those earlier arguments here. This is a significant change in the government's approach to the case.
Although the Feb. 23 letter sent from Attorney General Eric Holder to House Speaker John Boehner (R-Ohio) is not mentioned and the arguments used there that led to the decision to stop defending the Defense of Marriage Act appear nowhere here, the absence of any defense of the constitutionality of DADT is remarkable and appears -- without mention -- to be related or at least animated by a similar belief.
[UPDATE @ 1:45 AM: At LGBT POV, Karen Ocamb reports that Dan Woods, a partner at White & Case and the lead attorney for Log Cabin Republicans on the case, reached a similar, if not stronger, conclusion. He told her:
By not arguing merits of the constitutionality of Don't Ask, Don't Tell, the government's brief, by its silence on these issues, is effectively conceding that Don't Ask, Don't Tell was and is unconstitutional. While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don't Ask, Don't Tell is constitutional.
Although the headline might lead one astray, the Associated Press's Lisa Leff -- in the body of her story (because she likely did not write the headline) -- also reached a similar conclusion, reporting, "The relevant question now before the 9th Circuit, [Assistant Attorney General Tony] West maintained, is not whether 'don't ask, don't tell' is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal."]