Feds seek 'don't ask' challenge dismissal

PASADENA, Calif., Sept. 2 (UPI) -- The Obama administration asked a U.S. appeals court to dismiss a challenge to the military ban on openly gay personnel since the policy will be repealed soon.

The repeal of "don't ask, don't tell" is effective Sept. 20, now that the Pentagon has declared the change won't interfere with military readiness or recruiting.

Justice Department lawyer Henry Whitaker told the Ninth U.S. Circuit Court of Appeals Thursday that once the military policy ban is repealed any case challenging the ban is resolved, the San Francisco Chronicle reported Friday. He also asked that a judge's ruling that declared the law unconstitutional be discarded.

In July, the appeals court ordered the military to stop discharging openly gay service members. Whitaker told the court the armed forces have begun accepting applications from gay and lesbian recruits, including those previously discharged under "don't ask, don't tell."

But Dan Woods, a lawyer representing Log Cabin Republicans, the gay rights organization that sued to overturn the law seven years ago, told the three-judge panel sitting in Pasadena, Calif., some of the 14,000 service members discharged since 1993 need judicial protection.

Service personnel with less-than-honorable discharges aren't eligible for veterans benefits and cannot be buried in military cemeteries, Woods said. He also noted that some Republican presidential candidates have called for reinstating the 1993 law.

If the case is dismissed and the lower court ruling overturned, Woods said, "The government will be unconstrained and might do it again" since there would be no legal precedent.