The Ninth Circuit Court on Friday evening put back into effect temporarily the U.S. military’s ban on gays and lesbians from serving openly in the services, but also barred any investigations, penalties or discharges of anyone to carry out that policy.  In a three-page order, the three-judge panel said it was giving itself time to consider the Obama Administration’s strong new challenge to the courts’ authority to decide when to end the policy.  (The Administration’s new challenge, and the Log Cabin Republicans’ reply to it, are discussed in the updated post, below.)

While giving the Administration at least a temporary and largely symbolic victory, the panel also showed some displeasure with the Administration for skimping on the information it had shared with the Circuit Court about how the Pentagon is implementing a new federal law that is to repeal the 18-year-old ban, perhaps by this fall.  The judges ordered the government to file by 5 p.m. Monday an explanation “why they did not present [earlier]…the detailed information” submitted on Thursday.  The panel was referring to a filing by the government on May 20 opposing any order to stop enforcement of the ban.

The panel hinted that it would rule promptly on the Administration’s broad new challenge to the role of the judiciary in determining the timing of the policy’s final end.   It told the Log Cabin Republicans, the advocacy group that persuaded a federal judge to strike down the ban, to file by next Thursday any opposition it has to the government request, with the government allowed a reply by next Friday.   A ruling presumably would come shortly after those filings are in.  That would be at least a week after the Administration had asked for a decision on its challenge; it wanted a ruling by the close of business today (Friday).

This maneuvering does not involve directly the Circuit Court panel’s review of the constitutionality of the 1993 law that has led to thousands of discharges of gays and lesbians from the military services.  That question has been fully briefed, and the panel is to hold a hearing on it in the week of Aug. 29.  Under the present timetable for actual repeal of the ban, it may not occur until October or November.

In putting the policy ban into effect for the time being, the Circuit Court judges explicitly told the Pentagon that it may not carry out any investigation, punishment, or discharge of “anyone from the military pursuant to” the policy.  Thus, what remains in effect is the basic law’s policy declaration that gays and lesbians may not remain in the service if they have revealed their homosexuality or were found to be homosexual.   It appeared that part of the reason the panel was prepared to order a stop to those means of implementing the law was the revelation by the Pentagon Thursday that only one homosexual has been discharged from the service under the policy since Congress passed the repeal of “don’t ask/don’t tell” last December.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Military gay ban back in effect — partly, SCOTUSblog (Jul. 15, 2011, 9:54 PM),