Moments ago, the Ninth Circuit Court of Appeals granted the government’s request to stay a federal district court’s injunction against enforcing Don’t Ask, Don’t Tell, pending the government’s appeal of the ruling. The court had previously extended only a temporary stay “to provide this court with an opportunity to consider fully the issues presented.” In an eight-page decision, the justices identify “three reasons that persuade us to grant a stay pending appeal”:
- First, Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.
- Second, “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies.”
- Third, the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.
“Accordingly, we conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. 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,” the court concludes.
Judge William Fletcher dissented in part, noting that he too would stay the district court’s injuction, but would prevent the government “from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal.”
In September, Judge Virginia Phillis struck down the Don’t Ask, Don’t Tell policy as unconstitutional in a case brought forward by the Log Cabin Republicans. In an 86 page opinion, Phillips ruled that DADT violated the due process clause of the Fifth Amendment and the servicemembers’ First Amendment rights. Phillips later issued an injunction of the policy, denying the government’s request to stay her decision. For a period of eight days, the Pentagon followed Phillips’ order and allowed gay people to enlist and announced announced that it would limit who could authorize discharges once the temporary stay went into effect.
The government will not be required to file its appeal brief until Monday, Jan. 24, 2011.
Read the full decision here (pdf).
“It is really unfortunate that the government has tricked the Ninth Circuit into believing that ‘enormous consequences,’ ‘immediate harm,’ and ‘irreparable injury’ will result from a continuation of the injunction,” said Alexander Nicholson, Executive Director of Servicemembers United and the only named veteran plaintiff in the case. “By the government’s own admission elsewhere, none of these predicted consequences or injuries have come to pass while the law has been enjoined, and the Defense Department has even voluntarily created a de facto moratorium on discharges by further increasing the level of discharge authority. It is concerning that the government can so blatantly pull one over on an appeals court, and it is equally frustrating that such a distinguished court would allow itself to be fooled so obviously and so publicly in the name of ‘deference.’ Abdication is more like it.”
In light of this stalling of justice, the very narrow legislative path remains the only way by which the President, administration officials, and the congressional leadership can keep their promise to end “Don’t Ask, Don’t Tell” this year. In order for there to be any chance for legislative success, Senate Majority Leader Harry Reid absolutely must bring the National Defense Authorization Act back up on the Senate floor before the Senate recesses for Thanksgiving.
,From the Log Cabin Republicans:
“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”