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UPDATE: Gay ban back in effect

UPDATED 8:17 p.m.

The Ninth Circuit Court, acting swiftly on a plea by the Obama Administration, on Wednesday afternoon imposed a delay of at least five days of a federal judge’s order striking down the military’s “don’t ask/don’t tell” policy.  The three-judge panel’s order said the stay was issued “to provide this court with an opportunity to consider fully the issues presented.”  It gave the challengers to the policy until Oct. 25 to file an opposition to a further stay of the judge’s ruling until after the government appeal is decided.  The practical effect was to put the policy back into effect for the time being.


Acting early Wednesday morning, the Obama Administration urged a federal appeals court to immediately put back into effect the 17-year-old “don’t ask/don’t tell” law that bars gays from serving openly in the military.  The plea to the Ninth Circuit Court asked for a stay, to last as long as the government’s appeal proceeds, of a federal judge’s worldwide order barring any enforcement of that law and the Pentagon policy that carries it out. It also asked for an immediate postponement while the Circuit Court considers the stay application.  (The 21-page application, found here, was accompanied by 160 pages of attachments.)  UPDATE: The group that succeeded in challenging DADT has now filed a brief opposing a short-term stay, indicating it will file later a fuller opposition to the stay application. That new brief, found here, argued that the government has made no new arguments for any postponement.

The government’s filing came hours after U.S. District Judge Virginia A. Phillips refused Tuesday afternoon to delay her injunction against “don’t ask/don’t tell.”  (A post discussing the judge’s refusal is here.)  Her ruling last week against the law, the Administration’s new filing argued, “precludes the administration of an act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.”

The government urged the Circuit Court to act today on an “administrative stay” to block Judge Phillips’ ruling pending a ruling by the Circuit Court on a further delay during the appeal. (The case is docketed in the Circuit Court as Log Cabin Republicans v. U.S., 10-56634).

Arguing that the judge’s refusal to delay the decision created an emergency, the government filing said her decision “extends well beyond the individuals [involved in the case]…and is applicable to any member of the military anywhere in the world,” and “is at odds with basic principles of judicial restraint requiring courts to limit injunctive relief to the parties before the court.”  Moreover, it argued, her ruling has the effect of overturning decisions by other federal courts that have rejected challenges to the law, and prevents the government from contesting challenges in any other court.  The worldwide effect, it said, “causes the government the kind of irreparable injury that is routinely the basis for stays pending appeal.”

“In virtually all cases in which a single district judge declares an act of Congress unconstitutional,” it said, “courts appropriately grant a stay if requested to do so by the government.”

In a footnote, the application said that the Administration does not support the law “as a matter of policy and strongly believes that Congress should repeal it,” and added that the Justice Department was following its usual practice of defending the constitutionality of a federal law “as long as reasonable arguments can be made in support” of validity.

Aside from arguing why the judge’s ruling should be delayed, the application also argued that the Circuit Court should strike down the judge’s ruling in all of its facets.  It contended that the Log Cabin Republicans, a gay rights group, did not have “standing” to sue on behalf of any of its members, and that the two individuals represented in the case by that group similarly should not have been allowed to challenge the policy.

On the constitutional merits, the application argued that the judge should have deferred to the military’s judgment that the policy needed to remain in effect (pending possible repeal) in order to maintain military readiness. The judge also was wrong, it asserted, in ruling that the policy interferes with the First Amendment free speech rights of gay members of the military; the policy only affects their conduct, not their speech, it argued.

The government likened the military-wide injunction issued in this case to one that the Ninth Circuit had struck down in a case involving an earlier, more restrictive anti-gay policy in the military (Meinhold v. Defense Department, 1994).  “There is no reason for a different result here,” it contended.  The application also noted that, in the Meinhold case, the Supreme Court in 1993 had stayed pending an appeal the wide injunction issued by a lower court in that case.

A stay also is necessary, it argued, because Judge Phillips had commanded a “precipitous change in the military’s longstanding policy respecting gays and lesbians, which has been mandated by act of Congress for more than 16 years. That injunction operates imminently and directly on all government personnel throughout the world; the court did not simply review and set aside final decisions rendered in military proceedings.  The sweeping injunction therefore constitutes an extraordinary and unwarranted intrusion into military affairs.”

Noting that a Pentagon working group is about finished with a study of how to implement a legislative repeal of the law, the application said that “”repeal cannot occur overnight.”

If the injunction stays in effect, there will be confusion within the military if it is later struck down, the government filing contended.  And, it said, there would be “tremendous uncertainty” about the status of members of the service who in the meantime might reveal their homosexual orientation by relying on the judge’s ruling.

Recommended Citation: Lyle Denniston, UPDATE: Gay ban back in effect, SCOTUSblog (Oct. 20, 2010, 12:02 PM),