Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. In their briefs, [the United States] do[es] not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. [The United States] state[s] that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and [the United States] can no longer satisfy the demanding standard for issuance of a stay.
Perhaps most significantly, today’s order shows that the Department of Justice’s recent recognition that anti-gay laws are highly constitutionally suspect is producing results. The court expressly relied on this determination by DOJ in reinstating the injunction against Don’t Ask, Don’t Tell.
At the same time, however, it does not necessarily follow that the panel would have also struck down DOMA or otherwise resolved a gay rights question on the merits. Today’s order dealt with the narrow question of whether or not a trial court decision striking down DADT must be stayed while the decision is still under appeal. Before issuing a stay, a court must consider factors such as whether a stay will “substantially injure” other parties and whether a stay is “in the public interest.” Today’s order concludes that these factors no longer weigh in favor of a stay now that DADT repeal is imminent and DOJ concedes its unconstitutionality.
Nevertheless, today’s decision is an important sign that the Obama Administration’s recognition that gay people are entitled to the same equal protection of the law as all other Americans is paying dividends, and it could be a sign of things to come on the Supreme Court. Today’s panel included Chief Judge Alex Kozinski, a former law clerk to Justice Kennedy who remains very influential with his former boss.