President Barack Obama may have signed legislation phasing out the "don't ask, don't tell" policy, which forbids gays and lesbians from serving openly in the military, but a leading LGBT-rights advocacy group still wants it declared unconsitutional.
In an amicus brief filed Thursday with the 9th Circuit Court of Appeals in San Francisco, the Servicemembers Legal Defense Network argued that until DADT is completely repealed, it should face judicial scrutiny.
"Even today, gay Americans who wish to join the military may not do so openly," the group said.
As a result, "gay servicemembers are forced to continue to conceal fundamental aspects of their personal identity. Gay servicemembers continue to risk the threat of investigation and continue to be subjected to discharge."
The brief was filed on behalf of two sailors and one ROTC cadet who have faced discharge proceedings because of their sexual orientation since Obama signed the repeal legislation.
It is the latest legal salvo fired since September when U.S. District Court Judge Virginia A. Phillips agreed with the Log Cabin Republicans and ruled "don't ask, don't tell" unconstitutional, saying it violates gays' First and Fifth Amendment rights.
The Pentagon appealed the ruling to a federal appeals court in San Francisco.
On Feb. 25 government lawyers filed a brief arguing DADT is constitutional — two months after President Obama signed legislation phasing in a repeal of the policy.
"We are a nation that believes all men and women are created equal," Obama said.
The timeline of DADT's repeal has become increasingly contentious in recent weeks.
Most observers expect the policy to be completely phased out by the end of the year, but some advocates are concerned the Republican takeover of the House of Representatives may set that time frame back.
Rep. Joe Wilson (R-South Carolina), who famously shouted, "You lie!" during a 2009 speech by Obama about health care, held a hearing on Friday focused on possible dangers of allowing gays and lesbians to serve openly in the armed forces.
At the same time, a Navy separation board here in California decided Thursday not to discharge a petty officer second class for revealing his sexual orientation on his MySpace page.