The U.S. military can continue enforcing “don’t ask don’t tell” pending the government’s appeal of a district judge’s decision declaring the policy unconstitutional.
With one justice dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday issued a stay of the district judge’s injunction barring the military from enforcing the policy.
The appeals court had already granted a temporary stay of the injunction, but Monday’s decision extends the stay for the duration of the appeal, which will take at least several months.
Chris Geidner at Metro Weekly reports:
“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”
The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”
Dan Woods, an attorney for the plaintiffs in Log Cabin Republicans v. United States, issued the following statement:
“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. 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 U.S. Supreme Court.”
R. Clarke Cooper, executive director of Log Cabin, said in a statement, “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. 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.”