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UPDATE 1:51 p.m.: Military gay ban intact

UPDATE 1:51 p.m. The Supreme Court, without noting any dissent, agreed on Friday to leave the military’s “don’t ask/don’t tell” policy in full effect while its constitutionality is under review in a lower court.  Justice Anthony M. Kennedy referred the issue to the full Court.  Justice Elena Kagan took no part in the order.

As a result of the order, the policy will remain in effect at least through mid-March, unless Congress in the meantime voted to repeal it legislatively — an unlikely prospect, according to most observers.  The Ninth Circuit Court is reviewing a federal judge’s decision to strike down the policy and to impose a worldwide ban on its enforcement.  The Circuit Court’s briefing schedule, however, will not be completed until late February or early March, and a hearing and decision would come after that.

The order Friday technically denied a request (application 10A465) to lift a Circuit Court stay of the judge’s decision — in other words, the Justices were asked to allow District Judge Virginia A. Phillips’ ruling to go into effect pending the appeal in the Circuit Court and, perhaps ultimately, in the Supreme Court.  Because the Justices’ order was a complete denial, it  meant that they had turned aside not only a plea to block the policy in full, but also an alternative request at least to stop the Pentagon from ordering any discharges under the policy during the appeal.

While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development.  It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one.  Should the Ninth Circuit Court upheld the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it.

Justice Kagan, in her former role as U.S. Solicitor General, had taken several actions on cases testing the constitutionality of the “don’t ask/don’t tell” policy and those actions, presumably, led her to disqualify herself.  That is a choice left entirely up to each individual Justice.

Friday’s order was not a good sign for the challengers of “don’t ask/don’t tell,” but it was not a ruling for or against the constitutionality of the policy.  The Court’s decision to leave intact a lower court order in the situation that existed in this case at this time is based on different considerations, and does not necessarily telegraph how any Justice or the Court would come out after a full review of the merits of a case, following briefing and oral argument.

If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.

The following was posted here earlier Friday on completion of the briefing on the stay application:

Noting that the Pentagon on its own has stopped discharging gay and lesbian members of the services, a gay rights group on Friday told the Supreme Court that the military will suffer no harm if the Justices now bar discharges under the 1993 “don’t ask/don’t tell” policy.  In a final brief, the Log Cabin Republicans also noted a spate of news reports indicating that repeal of the gay ban by Congress is less and less likely, leaving only the courts to act on what a federal judge has decided is an unconstitutional policy.

Justice Anthony M. Kennedy is considering, and could refer to the full Court, an application to put into full effect U.S. District Judge Virginia A. Phillips’ ruling that the 1993 law is unconstitutional in all of its aspects, and the judge’s worldwide injunction that would bar its continued enforcement.  With the filing of the Log Cabin Republicans’ reply brief, the application (10A465) is now ready for the Court to act, and an order could come at any time.

If the Justices leave intact a Ninth Circuit Court stay of Judge Phillips’ order, the policy will remain in effect while its validity is tested in the Ninth Circuit and, perhaps, ultimately before the Justices.  If the Justices, however, lift that stay, at least part of the gay ban would be interrupted for the time being.

The Obama Administration, in urging the Justices on Wednesday to leave the policy in place, argued that a recent change in the Pentagon’s discharge policy now provides gays in the military with greater protection.  The decision to discharge under the policy, the government brief said, must now be made at the highest levels of the Pentagon.

Responding directly on that point, the Log Cabin Republicans cited a news article in the Army Times last week indicating that no discharges have been made under “don’t ask/don’t tell” since the change in policy on Oct. 21.   That change, the advocacy group’s brief contended, “is inconsistent with the government’s argument here that delaying discharges pending appeal would cause injuries that merit retention of the stay in full.”

While the challengers to the policy want it to be blocked in all respects, they have urged the Court, as an alternative, at least to stop any further discharges while the case continues in the courts.

The reply brief also sought to counter other government arguments, including the assertion that the Supreme Court would not be likely in the future to review the constitutional case over the gay ban.  There is already a conflict in the appeals courts over the standard to be used in judging the constitutionality of the 1993 law, the brief noted.  Moreover, it said, the Court “has had few opportunities” to spell out the scope of constitutional protection for gays and lesbians since its landmark ruling in Lawrence v. Texas in 2003 expanding that protection.

The government’s brief had argued that the Court has denied review of a challenge to “don’t ask/don’t tell” since issuing its Lawrence decision — the denial on June 8 last year of the First Circuit Court’s ruling in Cook v. Gates. (When the petition was denied, the case was titled Pietrangelo v. Gates, because most of the other parties in that case had opposed taking the case to the Supreme Court and, in fact, urged the Court to deny review.)

The Log Cabin Republicans’ reply brief Friday said that the Justices’ review of that case was opposed by the other challengers based on the argument that the Court should await the development of a full factual record at a trial on the policy’s constitutionality.  “This case now has a fully developed factual record,” the brief said.

When the Pietrangelo petition was before the Court, Elena Kagan, then U.S. Solicitor General, opposed review, saying that case was “an unsuitable vehicle” for the Court to use to review “don’t ask/don’t tell.”   Kagan, of course, is now a member of the Supreme Court.  Kagan was not yet in office as Solicitor General in February 2009 when the Obama Administration asked the Supreme Court to give it more time to pursue an appeal of a major Ninth Circuit Court ruling on the policy — the Circuit Court’s ruling in Witt v. Department of the Air Force.  Although the Administration was given until May to file such a petition, it opted not to do so.  Kagan was sworn in as Solicitor General on March 20, 2009.  She apparently took part in the government decision at that time not to appeal that case.

It is unknown whether she will feel obliged to recuse from any action the Court takes on the Pentagon policy now or in the future.  That could be known when the Court acts on the Log Cabin Republicans’ application.

Recommended Citation: Lyle Denniston, UPDATE 1:51 p.m.: Military gay ban intact, SCOTUSblog (Nov. 12, 2010, 1:21 PM),