Reading Room Document

Department of Defense Response to Interlocutory Decision of Court of Appeals Regarding Statute Requiring Separation of Homosexual Service Members from Military

Following the interlocutory decision of a court of appeals regarding the statute requiring the separation of certain gay and lesbian service members from the military, the Department of Defense is not legally required to revise its administrative procedures and policies in a manner that might preclude separations within the circuit that would otherwise be mandated by the statute. The Department of Defense is also not legally prohibited from acquiescing in the decision, although such a policy would appear to lack direct Executive Branch precedent and arguably would be in some tension with the Executive Branch's usual practice of implementing and defending statutes that are subject to constitutional challenge. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2010-03-25-dod-acquiesce/download.

March 25, 2010