Ninth Circuit Grants Stay of Injunction, DADT Still In Place

Posted on 01 Nov 2010 at 10:44pm

cross-posted at the Great Orange Satan.

Damn it.

Nov. 1 (Bloomberg) — The U.S. government’s “Don’t Ask, Don’t Tell” restriction on gays in the military will be enforced while a federal appeals court reviews a judge’s decision that the rule is unconstitutional.

A federal appeals court in San Francisco said today that ending “Don’t Ask, Don’t Tell” must be delayed while it considers whether the policy violates the free speech and due process rights of gays and lesbian seeking to serve in the military. The case could take weeks or months to decide.

Stay in your closets, troops. DADT isn't going away for a very, very long time.

Anyone who wants to read the appeal, it's up at Metro Weekly (opens as pdf). This is rich. Two of three Appeals panel judges claimed to support granting a stay of the injunction for three reasons:

  1. “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.” In other words, screw the people who are suffering under a law, since Congress did it, it must be fine and dandy.
  2. “'Judicial deference…is at its apogee' when Congress legislates under its authority to support and raise armies.” We're not touching this one with a fifty-foot pole wrapped in Saran Wrap.
  3. “[T]he District' Court' analysis and conclusions are arguably at odds with the decision of at least four other Circuit Courts of Appeal: the First, Second, Fourth, and Eighth.” All the other Circuits have curbstomped the queers, and we see no reason to buck the trend.

Let's not forget the conclusion:

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.

Hear that, LGB troops? Your very presence is so dangerous that it will cause immediate harm and precipitous injury.

I could vomit, and I'm sure I'm not the only one. Reactions below the fold.

 

From the Plaintiffs, Log Cabin Republicans and their counsel, White & Case:

Dan Woods, White & Case

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal.  Meanwhile, we will discuss the court's order with our client to determine whether we will ask for a review of the order by the US Supreme Court.”

R. Clarke Cooper, Executive Director, 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.”

 

From SLDN:

WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell” (DADT), released a statement today on the 9th Circuit Court of Appeals issuing a stay pending appeal of the judgment in the Log Cabin Republicans v. United States case, which found DADT unconstitutional. Last month, U.S. District Judge Virginia A. Phillips ordered an injunction that suspended and discontinued all investigations and discharges under the law.

Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame duck session to end this confusion and bring about the finality that is needed. We continue to warn service members that it is unsafe to come out as long as this law remains on the books.”

###

WARNING: Gay and lesbian service members OR those interested in signing up to serve who have questions should contact the SLDN legal hotline to speak with an attorney: 202-328-3244 x100.  SLDN also re-issued its warning to active-duty service members, including those in the reserves and the national guard, to know they’re at risk.  Anyone with questions or concerns should call our hotline or visit: www.SLDN.org/StillAtRisk.

From Lambda Legal:

Lambda Legal Disappointed: Ninth Circuit Puts Injunction Against Don't Ask, Don't Tell On Hold

“The pressure is now on Congress to repeal this fundamentally un-American law.”

In response to today's procedural ruling by a three-judge panel of the U.S. Ninth Circuit Court of Appeal permitting”Don't Ask, Don't Tell” to remain temporarily in effect during an appeal, Lambda Legal issued the following statement from  Staff Attorney Peter Renn:

“Today's ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate.  But it's important to remember what today's ruling was not:  a consideration of the merits of the case. That remains for another day.

“Each day that 'Don't Ask, Don't Tell' remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the President, who can issue a stop-loss order to put an immediate end to discharges under 'Don't Ask, Don't Tell.'”

Lambda Legal filed a friend-of-the-court brief in the case, brought by Log
Cabin Republicans, urging the U.S. Ninth Circuit Court of Appeals to leave
in place pending appeal an injunction against the law, saying that its
impact extends far beyond those in uniform, to include lesbian, gay, and
bisexual adults and youth, who must contend with the consequences of the
discriminatory message perpetuated by”Don't Ask, Don't Tell.”

For more information, please go to http://www.lambdalegal.org/in-court/cases/lcr-v-usa.html.

From Servicemembers United:

WASHINGTON, D.C. – Servicemembers United, the nation's largest organization of gay and lesbian troops and veterans, issued the following statement today in response to the Ninth Circuit's acceptance of the government's request for a longer stay of the injunction barring enforcement of the “Don't Ask, Don't Tell” policy:

“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.

In a video released online late last week, Servicemembers United's Executive Director explained the very narrow path available to achieve a legislative victory on “Don't Ask, Don't Tell” by the end of the year. The video can be viewed on Servicemembers United's YouTube channel at www.YouTube.com/ServicemembersUnited.

To find out more about Servicemembers United and “Don't Ask, Don't Tell” please visit www.ServicemembersUnited.org.

Pam’s House Blend – Front Page

Comments

comments

Powered by Facebook Comments