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UPDATE FRIDAY: Gay ban newly defended

UPDATE FRIDAY p.m.  The Ninth Circuit Court has set a schedule for the Obama Administration’s appeal in the “don’t ask/don’t tell” case that, unless expedited, would have the case still in the briefing stage through late February or early March.  The case has been docketed in the Circuit Court as 10-56634.  The scheduling order is here.


Saying it does not favor a continued ban on gays serving openly in the U.S. military, the Obama Administration nevertheless said it would defend it for the time being, and moved on Thursday evening to get a federal judge to put on hold her ruling striking down the “don’t ask/don’t tell” policy.  The issues are so urgent and grave, the Justice Department told the judge, she should act on the request by next Monday.

The flurry of filings in the District Court in Riverside, CA, included an emergency stay application (here), a legal memorandum supporting it (here), sworn staements by a Pentagon official and a government lawyer, a proposed stay order (here), and a formal notice of appeal to the Ninth Circuit Court.

The government lawyers moved so quickly, two days after Judge Virginia A. Phillips issued what the government called “a worldwide injunction” against enforcement of the ban, that they did not take time to give formal notice to lawyers for the challengers on the other side.  They indicated, however, that they had been told that the challengers will oppose an immediate stay of Judge Phillips’ order.

The legal memorandum brought out heavy rhetorical artillery, saying that it was the Pentagon’s “considered judgment that a precipitous change in policy will immediately and significnatly impair the Department’;s current efforts to devise an orderly end to DADT.”

In addition, it said, immediate implementation of the judge’s order “would cause irreparable harms…An injunction whose longevity is uncertain threatens to disrupt ongoing military operations at a time when a comprehensive policy review, and plan for iimplemetning repeal, are nearing completion.”

The document said that Judge Phillips’ ruling raises “serious constitutional questions” that justify staying it.  It noted that the policy has been upheld by federal courts “on several occasions since it was enacted in 1993.”

It reminded the judge that President Obama favors repeal of the gay ban, and that top military officials have taken the same position, urging Congress to repeal the law that was adopted during the Clinton Administration.  The Pentagon has a high-level Working Group, the memo noted, that is working on a broad review of the law and how best to change it “in a prudent manner.”  The Group is due to report by Dec. 1, it recalled.

The lengthy sworn statement by a Pentagon undersecretary for personnel, Clifford L. Stanley, said that the injunction against continued enforcement of the ban “would risk significant and immediate impairment of the public interest in military readiness.”

The government lawyers made a descending series of requests to Judge Phillips.  Their preferred option was an immediate stay by her, to keep her ruling and the injunction on hold while the government pursued its appeal to the Ninth Circuit — an appeal that was formally noticed Thursday.

If the judge does not grant an immediate stay, the lawyers proposed, she should at least delay her ruling until she can consider whether to issue a stay.  If neither of those steps are taken, according to the proposal, the judge should postpone her ruling long enough to let the Circuit Court considera stay plea that would be filed there.

The  government lawyers asked Judge Phillips to rule on its request by noon (West Coast time) on next Monday.   If she grants no temporary relief, the document said, the government will ask the Circuit Court to delay the injunction, after issuing a short-term stay until it can consider that application.

In a footnote on the first page of the legal memorandum, the government lawyers noted that President Obama and the Administration do not support the DADT ban and strongly favor its repeal.  But, the note added, the Justice Department “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here.”

Recommended Citation: Lyle Denniston, UPDATE FRIDAY: Gay ban newly defended, SCOTUSblog (Oct. 14, 2010, 9:16 PM),