Breaking Prop 8 news: federal case punted by 9th circuit back to California Supreme Court

There’s a lot of legalese to read through, but the short answer is that the federal court (9th circuit) is handing the case back to the California Supreme Court to determine whether the Protect Marriage crowd has standing to appeal. The brief:

               

Calitics has a quick analysis up:

A further reading of the document issued minutes ago by the 9th Circuit indicates that the court is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:
If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, ? 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, ? 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

Click over for more.
Pam’s House Blend – Front Page

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Would a Supreme Court Decision Favoring Gay Marriage Decrease Public Support?

When Iowa voters casted out three state judges that voted in favor of gay marriage rights earlier this month, I was reminded how many times a popular vote has been in favor of gay marriage: zero. Even in liberal Maine, voters struck down a gay marriage law.

Instead, gay marriage victories have usually come from the courts. Legalization of gay marriage in Iowa, Massachusetts, Connecticut, D.C., and New Hampshire all resulted from court decisions. Only in Vermont did gay marriage result from a legislative decision, but that still wasn’t a popular vote.

Now five gay marriage lawsuits threaten to bring the issue to the Supreme Court. The issue is whether a Supreme Court decision in favor of gay marriage would actually decrease public support. Right now, only 41% support letting LGBT people marry. Could this number go down?

The Risk of Backlash

So far court decisions in favor of gay marriage have brought about legislative backlash. Michael Lindenberger explained this week in Time Magazine:

For instance, Hawaii’s ruling pushed Congress to pass the Defense of Marriage Act. The 2003 Goodridge decision legalized gay marriage in Massachusetts but ignited a conservative reaction that saw 11 states vote to amend their constitutions to ban gay marriage — a tide that significantly boosted Republican turnout in critical states in the 2004 elections. . . It happened again just this month when voters tossed out three Iowa Supreme Court justices who had previously ruled in favor of gay marriage.

In fact, when it comes to civil rights, public opinion has historically decreased when courts have ruled against it. Abortion continues to divide the public forty years after the Court ruled in favor of abortion rights in Roe v. Wade.

Or, look at what happened after Furman v. Georgia, when the Court ruled that application of the death penalty had to be consistent to be constitutional. A majority of states passed laws favoring the death penalty, and public support for the death penalty has not decreased in the forty years since.

What Will Happen With Gay Marriage

I think, for whatever reason, gay marriage is different. Last year I talked about two reasons why gay marriage public support is higher in states where marriage laws are challenged.

First, judicial challenges raise public awareness of the issue. When a case reaches the state’s highest court, it puts the topic in everyday conversation, forcing people to take sides. Perhaps people don’t want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.

Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.

In addition, despite the legislative backlash that has so far followed court decisions in favor of gay marriage, public support has not shown a similar backlash. Instead, the nationwide trend of increasing gay marriage support has remained.

Ultimately, while a Supreme Court decision legalizing gay marriage could decrease public support, I don’t think it will.

[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]

Pam’s House Blend – Front Page

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Supreme disappointment: #DADT will live to see Macy’s Parade

Not shocking. Still annoying:

WASHINGTON — The Supreme Court is refusing to block enforcement of the “don’t ask, don’t tell” policy on gays in the military while a federal appeals court considers the issue.

The court on Friday denied a request from the Log Cabin Republicans, a gay rights group, to step into the ongoing federal court review of “don’t ask, don’t tell.”

High court rejects plea to block gay military ban [AP via WaPo]




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Obama admin. asks Supreme Court to deny LCR’s motion to end the DADT stay

The Acting Solicitor General, Neal Kumar Katyal, has asked the U.S. Supreme Court to deny the Log Cabin Republican’s motion to vacate the stay of the DADT injunction:

Government lawyers asked the U.S. Supreme Court Wednesday to deny a request by the Log Cabin Republicans that the court lift a stay of the worldwide injunction a federal judge placed on the “don’t ask, don’t tell” policy in September after she rule the law unconstitutional.

The motion includes with a Declaration from Clifford Stanley, the Under Secretary of Defense for Personnel and Readiness who tells the Court:

I submit this declaration to make the following point: the Government intends to appeal the Court’s decision. During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas. The magnitude of repealing the DADT law and policy is demonstrated by the Department’s ongoing efforts to study the implications of repealing DADT, which I outline in detail below.

According to Stanley, the injunction would adversely impact “military readiness”:

As demonstrated below, in the event DADT is no longer in effect, an injunction with immediate and worldwide effect will have adverse effects on both military readiness and the Department’s ability to effect a smooth and lasting transition to a policy that accommodates the presence of openly gay and lesbian servicemembers. The stakes here are so high, and the potential harm so great, that caution is in order.

There’s has been an abundance of caution. Too much caution. DADT should be long gone by now.

Could this be a bigger mess for the Obama administration? They’ve so lost control of this process – and I don’t really think there is a strategy to fix it. That’s why this Log Cabin lawsuit keeps causing more and more problems for the administration.

Log Cabin’s Executive Director and the group’s attorney have issued statements.

First, really interesting background from R. Clarke Cooper, the Executive Director of Log Cabin Republicans:

“It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy. At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend ‘Don’t Ask, Don’t Tell’ in court. This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President’s call. The White House has been missing in action on Capitol Hill, undermining efforts to repeal ‘Don’t Ask, Don’t Tell’ in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform.”

The White House was also missing in action in September, when the Defense bill hit the Senate floor.

And, here’s the statement from Dan Woods, the lead attorney from White & Case:

“We have reviewed the government’s opposition to Log Cabin’s application to vacate the stay of Judge Phillips’s injunction by the Ninth Circuit. In our view, the government’s lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court. First, we argued that the premise of the government’s position–that it needs time to conduct an orderly process of repealing DADT–is entirely speculative because Congress has not and very well may never repeal DADT; the government’s filing today does not address that issue. Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government’s filing today does not respond to that point either. At this point, all we can do is to look forward to a favorable ruling from the Supreme Court.”

A favorable ruling from the Supreme Court would be a very good thing.

Solicitor General’s Opposition to LCR’s Supreme Ct. Motion to Vacate DADT Stay




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DOJ Files Opposition to LCR Supreme Court Request to Vacate DADT Stay Order

MetroWeekly reports that the government has responded to the Log Cabin Republican request to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's injunction barring enforcement of 'Don't Ask, Don't Tell':

Dadt "In a filing at the U.S. Supreme Court this afternoon, the U.S. government, represented by acting Solicitor General Neal Katyal, asked the court to leave in place the stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy. The government's argument would keep DADT in effect while the Log Cabin Republicans v. United States case is on appeal before the U.S. Court of Appeals for the Ninth Circuit."

The response was requested from Justice Kennedy when the LCR application was filed.

Argues Acting U.S. Solicitor General Neal Katyal in the briefing: "It was entirely appropriate for the court of appeals to defer to the considered judgment of senior military leaders that any change in policy must be done in an orderly and careful manner in order to be successful."

Woods Wrote Dan Woods, lead attorney for the Log Cabin Republicans, in a statement:

"We have reviewed the government's opposition to Log Cabin's application to vacate the stay of Judge Phillips's injunction by the Ninth Circuit. In our view, the government's lengthy, detailed, 29-page brief does not address the two key arguments we presented to the Supreme Court.  First, we argued that the premise of the government's position–that it needs time to conduct an orderly process of repealing DADT–is entirely speculative because Congress has not and very well may never repeal DADT; the government's filing today does not address that issue.  Second, we argued that the Ninth Circuit order did not take into account the harm to servicemembers and potential enlistees resulting from the stay; the government's filing today does not respond to that point either.  At this point, all we can do is to look forward to a favorable ruling from the Supreme Court."

Added R. Clarke Cooper, Executive Director of the Log Cabin Republicans:

"It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court to halt this failed policy.  At the same time, President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend 'Don't Ask, Don't Tell' in court.  This week Log Cabin Republicans have conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President's call.  The White House has been missing in action on Capitol Hill, undermining efforts to repeal 'Don't Ask, Don't Tell' in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform."

View the brief, AFTER THE JUMP

US-response-10A465-11-10-10


Towleroad News #gay

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Stop the National Organization for Marriage from assaulting our courts – sign our letter to U.S. Supreme Court Chief Justice John Roberts

Cross-posted from NOMExposed.org

Today NOMExposed is launching an effort to fight back against what the National Organization for Marriage did in Iowa.

NOM set its political bulls-eye on ousting three of Iowa’s Supreme Court justices who agreed that same-sex couples have a constitutional right to marry. On Election Day, all three lost.

This was not about Iowa. (Marriage equality remains law in the state.) It was about scaring other judges across the country, including U.S. Supreme Court justices. NOM’s message:  either rule they way we want you to, or we’ll come after you.

NOM’s actions were a heavy-handed assault on our nation’s courts.

Sign our letter to U.S. Supreme Court Chief Justice John Roberts asking him to condemn NOM and to speak out for an independent judiciary free from bitter partisan political campaigns like the one waged in Iowa.

Being virulently anti-LGBT is one thing. Tearing down our justice system is quite another.


Human Rights Campaign | HRC Back Story

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Supreme Court Again Declines to Consider Miller V. Jenkins Case

Today, the Supreme Court of the Unites States declined to consider -for the fifth time – a case regarding the custody of a child born to a lesbian couple in Vermont.

The couple, Lisa Miller and Janet Jenkins, had been in a civil union in Vermont and had been ruled legal co-parents by a Vermont court. When the relationship ended in 2003, Miller, the biological mother, moved to Virginia with the couple’s daughter and, later that year, returned to Vermont to dissolve their civil union. In June 2004, the Vermont Family Court awarded the former partner visitation rights in Vermont and Virginia.

After a new law went into effect in Virginia on July 1, 2004, purporting to null and void civil unions along with other partnerships between same-sex couples, the biological mother filed a petition requesting sole custody based on the fact that the new law made the civil union null and void. During this time, Jenkins, still living in Vermont, filed for full custody. The Vermont court heard oral arguments in early August 2004, and in November 2004 the Vermont court held that Jenkins had all the legal rights that any parent would have to a child born into marriage. The Vermont court also found the Miller in contempt because she refused to allow her former partner visitation.

In August 2004, a Virginia court ruled that Virginia had jurisdiction in the case. This decision was appealed to the Virginia Court of Appeals. In November 2006, the Virginia Court of Appeals ruled that Vermont had jurisdiction in this case and that Virginia courts must give full faith and credit to the custody and visitation orders of the Vermont court.

In March 2008, the Vermont Supreme Court upheld the lower court’s decision to award custody to Jenkins and hold Miller in contempt of Court. Then in June 2008, the Virginia Supreme Court upheld the Court of Appeals decision that Vermont has jurisdiction. Miller disappeared with their daughter in late 2008 and failed to turn the child over to Jenkins in January 2009 as ordered by the court.  Miller’s whereabouts are unknown.


Human Rights Campaign | HRC Back Story

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Excellent analysis of Log Cabin’s DADT brief to the Supreme Court

Via TowleRoad:

At the center of LCR’s argument to the Supreme Court is that the Ninth Circuit “abused its discretion” when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays. An “abuse of discretion” is a tough standard to meet simply because appellate courts have discretion to issue stays. But what they don’t have discretion to do is to grant stays without requiring the party seeking the stay to prove, among other things, a “likelihood of success on the merits.” All that means is that in order to properly get the stay at the Ninth Circuit, the government had to prove that it was likely to win its appeal on the merits, likely to keep DADT as good law. The Ninth Circuit, LCR argues, didn’t really do that. Nor did the Ninth Circuit engage in the required balancing of harms. Before getting a stay, the government was also supposed to show that any hardship to the military or the government if there were no stay would outweigh any hardship to LCR with a stay. Finally, LCR points out that the Ninth Circuit accepted the government’s injury argument based on mere speculation rather than actual evidence.

LCR’s argument makes a lot of sense to me, especially since the Ninth Circuit apparently justified its stay on Judge Phillips’s decision being at odds with other court decisions on DADT and generally failed to require the government to justify a stay. A stay is an example of “extraordinary relief,” meaning that you don’t get it just because you want it, you have to prove a lot — meet a “heavy burden” — to get it. At the Ninth Circuit, the government arguably did not meet that burden.




AMERICAblog Gay

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DADT: Log Cabin’ers Make Their Next Move, to the Supreme Court

ARI EZRA WALDMAN

Guestblogger Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Supremes Today, the Log Cabin Republicans (LCR), through their attorneys at White & Case LLP, filed an application (read it, AFTER THE JUMP) with the Supreme Court to vacate the stay that the Ninth Circuit placed on Judge Virginia Phillips's decision that found the "Don't Ask, Don't Tell" law (DADT) unconstitutional. It was their next move and a good one, but the odds of success aren't great. This short post will summarize LCR's arguments and answer a few questions about what happened today and how this will unfold in the next few days/weeks.

First, some background. As you know, about ten days after Judge Virginia Phillips declared DADT unconstitutional, she issued a worldwide injunction barring enforcement of the law. The government asked her for a stay on that order pending appeal, meaning that the government asked her to keep the status quo — keep DADT operational — as the case goes up the chain. In a well-reasoned opinion, she declined. The government then asked the Ninth Circuit — the next highest court — for a stay, and it was eventually granted. Practically, that meant that as the case goes on, DADT is still a good law.

What LCR filed today was its request to the Supreme Court — the next highest court above the Ninth Circuit — to undo what the Ninth Circuit did, to "vacate" the stay granted by the Ninth Circuit. If LCR wins, the stay would be lifted and Judge Phillips's injunction that would order the military to accept openly gay and lesbian individual into the service.

Notably, this dispute isn't about the merits of DADT, that is, we're not talking about whether DADT is unconstitutional, we're just talking about holding off on implementing the order while the appeal is ongoing.

LCR deserves credit not only for bringing this case in the first place, but also for noticing the legal failings of the Ninth Circuit's order granting a stay and for its strong advocacy. So, what is the LCR's argument here?

At the center of LCR's argument to the Supreme Court is that the Ninth Circuit "abused its discretion" when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays. An "abuse of discretion" is a tough standard to meet simply because appellate courts have discretion to issue stays. But what they don't have discretion to do is to grant stays without requiring the party seeking the stay to prove, among other things, a "likelihood of success on the merits." All that means is that in order to properly get the stay at the Ninth Circuit, the government had to prove that it was likely to win its appeal on the merits, likely to keep DADT as good law. The Ninth Circuit, LCR argues, didn't really do that. Nor did the Ninth Circuit engage in the required balancing of harms. Before getting a stay, the government was also supposed to show that any hardship to the military or the government if there were no stay would outweigh any hardship to LCR with a stay. Finally, LCR points out that the Ninth Circuit accepted the government's injury argument based on mere speculation rather than actual evidence.

LCR's argument makes a lot of sense to me, especially since the Ninth Circuit apparently justified its stay on Judge Phillips's decision being at odds with other court decisions on DADT and generally failed to require the government to justify a stay. A stay is an example of "extraordinary relief," meaning that you don't get it just because you want it, you have to prove a lot — meet a "heavy burden" — to get it. At the Ninth Circuit, the government arguably did not meet that burden.

In its brief, LCR goes through the proper test for a stay and shows how the Ninth Circuit failed. The government had to show it was likely to succeed on the merits, but its arguments in that regard basically referred to previous court decisions upholding DADT. I've always found this part of the stay test to be tough to prove one way or another. Likelihood of success is supposed to mean "more than likely", but courts issue stays even when the moving party shows a "colorable" argument on the merits — namely, an argument that makes sense and could win. LCR's brief has it right, but the vagaries of this element make it hard to win here.

The Ninth Circuit's most striking error was its utter failure to balance the hardships to the parties before granting a stay. The government had to show that without a stay, it would suffer serious and "irreparable" harm. But the court then had to balance any of those harms against any harm that LCR and its members would feel without a stay AND the harms that would befall the military with a stay. How does that make sense? The government argued that the military needed an orderly disposition to DADT and that an abrupt end would be disruptive. But, LCR showed at trial, and on motion to the Ninth Circuit, that the military is harmed every day DADT is in place. The Ninth Circuit failed to give weight to those injuries, and it let the government get by with only administrative and organizational harms that were, in any event, purely speculative. The government offered no real evidence of the administrative difficulties and administrative harms ever outweigh injuries to constitutional rights. LCR has a strong and persuasive argument here.

Arguably, the story should end here. Failure to use the proper standard and use of speculative evidence is enough to vacate the stay. But, the Ninth Circuit also justified its stay based on the presumptive constitutionality of Congressional actions and the necessary deference that we give the military and to Congress when legislating about the military. It seems like this is a catch all — namely, given that we give the military a lot of leeway and freedom from the courts, we should just defer to it all the time. But, LCR is right to point out that while deference here is undisputed, that deference does not obviate the court's responsibility to conduct the proper balancing, follow settled precedent and consider all rights and harms before granting a stay.

There's more in LCR's brief, of course. For example, it criticizes the Ninth Circuit for suggesting it had to follow the decisions of its sister circuits (when it clearly does not) and, in any event, those other decisions are either outdated or not relevant. Suffice it to say, this brief is not cookie cutter. White & Case attorneys did a good job finding specific errors in the Ninth Circuit's process in granting the stay in addition to the substantive law. This may carry weight.

May is the operative word. While it should be the rule that the party seeking the stay has the heavier burden, when the party seeking the stay is the government and when the case involves a politically charged act of Congress, formal rules tend to bend to political realities. Unquestionably, courts are more willing to grant stays to the government in hot political cases. That doesn't make it right, it's just the way it is.

Still, if any brief was going to be successful, it's this one. I eagerly anticipate the next steps, with guarded optimism.

After the jump, some answers to anticipated questions, and the application itself.

Continue reading Log Cabin'ers Make Their Next Move AFTER THE JUMP

Why was the brief directed to Justice Anthony M. Kennedy?

Technically, the LCR asked Justice Kennedy to vacate the Ninth Circuit's stay. Each justice is given responsibility to deal with applications like this one and emergency motions and appeals over a particular circuit. Justice Ginsburg, for example, supervises the Second Circuit; Justice Kagan gets to oversee emergency appeals from the Sixth and Seventh Circuits; and so on. Justice Kennedy could decide this matter on his own, or he could refer the LCR's application to the entire Supreme Court. He has complete discretion here.

What happens next?

Justice Kennedy could rule on the application tomorrow, next week, next month or whenever. He could also request that the government file a brief in response, giving them a chance to get their voices heard. Again, Justice Kennedy has complete discretion here. It's good to be a Supreme Court justice!

If the stay is vacated…

then the military will once again have to start accepting openly gay and lesbian individuals into the service and would not be able to enforce the law against any service member currently in the armed forces. The appeal about whether DADT is unconstitutional would still go on, but it would go on while openly gay service members are free to serve.

If the stay is upheld…

then, DADT can still be enforced — albeit under the restrictions recently imposed by the administration — while the appeal goes on up the system.

If you have any other questions, let me know!

Here's the application itself:

Application to Vacate


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Breaking: Log Cabin Republicans Asks Supreme Court To Toss Out 9th Circuit’s DADT Stay, Immediately Halt Discharges

In an emergency request to reverse the Ninth Circuit Court of Appeals' 2-1 decision to grant a stay, thus blocking Judge Virginia Phillips' injunction of Don't Ask Don't Tell, the Log Cabin Republicans are asking the Supreme Court to toss out the stay and keep DADT from being enforced while the government appeals the decision. The option to act falls to Justice Anthony Kennedy, who handles the Ninth Circuit's appeals, and who "will likely ask his eight colleagues to help him decide and order the federal government to weigh in with its views before a decision is made," says CNN. LCR's chief R. Clarke Cooper says, "It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court." The group writes in its filing, called an "application," "Unless the court of appeals stay is vacated, the respondents will be free to continue to investigate and discharge American service members for no reason other than their homosexuality, in violation of their due process and First Amendment rights."


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