With repeal of “Don’t Ask, Don’t Tell” expected to become effective on Sept. 20, a court ruling that the military’s ban on openly gay service members was unconstitutional is moot and should be wiped off the books, a Justice Department attorney told a federal appeals panel.
In oral arguments before the Ninth Circuit U.S. Court of Appeals on Thursday, Henry Whitaker, an appellate attorney in the department’s civil division in Washington, argued that U.S. District Judge Virginia Phillips’ Sept. 9 ruling consequently should be vacated from the record.
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