Plaintiffs In DADT Case Urge Court To Lift Stay, Argue Admin Has Not Shown Harm From Ending Policy

Yesterday, the Log Cabin Republicans, the group which won an injunction against enforcing Don’t Ask, Don’t Tell earlier this month from a federal judge in California, filed a response to the government’s emergency motion for a stay in the 9th Circuit Court of Appeals, arguing that the Department of Justice has not shown that “it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district court’s judgment remains in place pending determination of this appeal.” The court of appeals can decide whether to lift its temporary stay of an injunction barring enforcement of DADT at any time.

“The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail,” the group argues, pointing out that the government has “not shown irreparable injury if a stay is denied”:

Much of the appellants’ motion is devoted to their claim that the military will be harmed if the district court’s injunction remains in place while the government appeals. The supposed harms identified in the motion, and enumerated in the Stanley Declaration, are all to the military’s institutional interests and its bureaucratic needs. But the injunction does not require the military to take any affirmative measures: it does not order the military to redesign its barracks, to retool its pay scales or benefits, to re-ordain its chaplains, to rewrite its already extensive anti-harassment or “dignity and respect” rules, or anything else. Nor does it prevent the military from undertaking the acts appellants now claim it must do if DADT is enjoined – revising policies, preparing educational and training materials, and the lie. The district court’s injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability. […]

The supposed “injury” to the military that the government claims would result from the district court’s injunction is, by the government’s own account, entirely a matter of rewriting handbooks and personnel manuals, developing training and “education” materials, reassuring serving personnel that their “views, concerns, and perspectives” are valued, and the like. These activities are not “irreparable injury” of the type that the test for a stay contemplates. Moreover, the government has known since June 2009, when the district court set this case for trial, that it might lose and have to adjust its policies accordingly. By contrast, the injury to Log Cabin’s members and to all American servicemembers from granting a stay is both immediate and truly irreparable, in a Constitutional sense, as the following section shows.

Also yesterday, four other LGBT groups including Servicemembers United, SLDN, the Palm Center and Lambada Legal filed amicus briefs urging the court should allow Judge Phillips’ injunction to stand until the case comes to appeal early next year. Interestingly, Lambda Legal’s brief argues that DADT’s discriminatory message is particularly damaging to lesbian, gay and bisexual youth, as exemplified by the surge of recently-reported teen suicides caused by antigay bullying. “The government cannot plausibly claim that its actions are unrelated to such tragedies and abuses, so long as it remains the nation’s leading model for open discrimination against LGB people,” it says.