In a 2-1 split, the Ninth Circuit Court of Appeals ruled it would make permanent its temporary stay of District Judge Virginia Phillips’ ruling that Don’t-Ask-Don’t-Tell is unconstitutional and should no longer be enforced by the United States military. This ruling means that the stay will remain in place until the Appeals Court rules, after reading briefs due in January and February, and perhaps hearing arguments after those briefs.
With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of the military’s “Don’t Ask, Don’t Tell” policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government’s appeal of Log Cabin Republicans v. United States.
The immediate impact of the ruling, which was not unexpected, means that — absent congressional or executive action — DADT will remain in effect through at least Spring 2011. The practical timeline for the appeal, however, means it actually would remain law much longer.
From The Advocate:
A three-judge panel of the U.S. court of appeals for the ninth circuit ruled that the “the lack of an orderly transition in policy” could produce “immediate harm” and “precipitous injury” — echoing arguments made by the Obama administration’s Justice Department in the lawsuit Log Cabin Republicans v. United States of America. In that case, a federal district judge ruled in September that the 17-year-old policy violated the constitutional rights of gay service members.
“We also conclude that the public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” ninth circuit judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote.
Apparently, all it takes is for the US Government to say, on behalf of a homophobic military leadership, that DADT repeal is a big deal. Once the court accepts the argument that it’s a big deal — and despite early leaks about the survey of active-duty servicemembers that it is, in fact, NOT a big deal — then there’s hardly any way to disallow the permanent stay, especially in a time of war.
The dissenting judge on the three-judge panel made the important point that the Commander-in-Chief could had been compelled to suspend the policy:
In a dissenting opinion, Judge William A. Fletcher wrote that he would have favored a stay of the district court’s order if the Defense Department were barred from any further discharges of gay service members under DADT.
Dan Woods, lead attorney for the Log Cabin Republicans, told The Advocate Monday afternoon that he was reviewing the court’s ruling and that he will discuss with his client whether or not to appeal to the U.S. Supreme Court. “I imagine it will be a long shot,” Woods said.
However, Woods said he may file a separate motion seeking expedited arguments in the case. The ninth circuit allowed an expedited schedule in California’s Proposition 8 case, with arguments scheduled for December 6.