Gay rights advocates on Monday filed a challenge to a request by the Obama administration to keep the repealed "don't ask, don't tell" policy in place while the Pentagon prepares for an end to the ban on allowing gays to serve openly in the military.
In a brief filed in the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for gay political group Log Cabin Republicans said keeping the policy in place was "absurd."
At issue is the constitutionality of Congress allowing the policy to stay in effect to give the Pentagon time to train troops and take other steps outlined in December when lawmakers repealed the 1993 law that put the ban in place. Under the new policy, the restrictions remain until the Pentagon certifies that the change won't damage combat readiness.
The repeal came several months after a federal district judge issued an injunction barring enforcement of "don't ask, don't tell," declaring in September that the policy was unconstitutional.
The Obama administration request to keep the policy in place was made in its brief challenging the injunction. Dan Woods, who is representing the Log Cabin Republicans, replied in the brief filed Monday.
"Even though a judge found this to be unconstitutional and the administration is not disagreeing with that, they are still investigating and able to discharge people," he said.
Earlier this year, the administration said it would no longer defend the 1996 federal law that prohibits recognition of same-sex marriages.
President Barack Obama had concluded that any law that treats gay people differently is unconstitutional unless it serves a compelling governmental interest, Attorney General Eric Holder said when discussing the administration's reasoning for that decision.