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Military gay ban newly tested (UPDATED)

UPDATED 8:44  p.m.  Justice Kennedy has asked the federal government for a response to this plea, to be filed by 5 p.m. next Wednesday.

A gay rights group, renewing its challenge to the military’s “don’t ask/don’t tell” policy against gays in the services, asked the Supreme Court on Friday afternoon to block that ban as the test case over its constitutionality moves on in lower federal courts.  Specifically, the Log Cabin Republicans urged the Court to lift the stay issued last Monday by the Ninth Circuit that allowed the ban to stay in effect during the appeal.  The application is docketed as 10A465; it can be found here.

If the Court is not willing to block the entire policy, the application asked that the Justices at least stop for the time being all discharges of gays and lesbians found to have violated the policy — the position that the dissenting judge on the Ninth Circuit had suggested.

This is the first time the Court has been drawn into the constitutional dispute since a federal judge in Riverside, CA, struck down the policy on Oct. 12.  The plea to restore the worldwide injunction issued by District Judge Virginia A. Phillips was filed with Justice Anthony M. Kennedy, who is Circuit Justice for that part of the country.  He has the authority to act on it on his own, or share it with his colleagues.  No action is likely until after the Obama Administration has a chance to reply.  Since it resisted any interference with the policy in lower courts, it almost surely will do so again.

The application was a multi-faceted challenge to the Ninth Circuit’s reasoning in delaying Judge Philllips’ order pending the appeal.  Arguing that the Circuit Court abused its discretion, the Log Cabin Republicans said that the appeals court panel had “ignored controlling precedent,” including the Supreme Court’s 2003 ruling in Lawrence v. Texas, expanding the rights of gays to engage in homosexual conduct in private.

In addition, the group contended that the panel had “sidestepped” a requirement that the government show it will ultimately win the constitutional case, had given “no consideration whatsoever” to the harm that the continued policy will cause for gays and lesbians in the military, and had applied “the wrong standard” to the government’s claim that the military will be harmed by the injunction.  The Circuit Court, it argued, had rested its decision “entirely on speculation” about harm to the military.

“Any alleged harms to the government,” the Log Cabin Republicans contended, “are entirely bureaucratic, procedural and transitory in nature, and are sharply outweighed by the substantial constitutional injury that servicemembers will sustain from a stay of the District Court’s judgment.”  The rationale given by the Circuit Court for staying the injunction, the group argued, “do not withstand minimal scrutiny.  The order should be vacated.”

The Circuit Court, in allowing the policy to remain in effect, left intact an earlier order setting a briefing schedule for the appeal process before that Court.  The briefing will run into early March, thus indicating that a final ruling from that Court would not be likely until late in March, and very likely later.

The new application relied heavily upon the Lawrence precedent on gay rights.  It noted that, when the “don’t ask/don’t tell” policy was enacted by Congress in 1993, a key precedent of the Supreme Court at the time was Bowers v. Hardwick, rejecting a challenge by homosexuals to state laws against intimate homosexual conduct.  The Bowers decision, it noted, was overturned by the Lawrence decision.

The document argued that the Obama Administration, in seeking time for an “orderly transition” to the complete end of the policy, was relying upon an assumption that Congress will vote to repeal the 1993 law inaugurating the ban.  Given the results of Tuesday’s congressional elections (when a new group of conservative lawmakers won seats), the application said that there is no chance the repeal would go through this year or later.

Recommended Citation: Lyle Denniston, Military gay ban newly tested (UPDATED), SCOTUSblog (Nov. 5, 2010, 4:25 PM),