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U.S.: Don’t interrupt gay ban

The Obama Administration, continuing its defense in court of the ban on gays and lesbians serving openly in the U.S. military, urged the Supreme Court on Wednesday not to interrupt that policy while its constitutionality is being tested in lower federal courts.  A California federal judge’s worldwide order against enforcement of the 1993 law and Pentagon regulations should not be allowed to take effect in the meantime, the government contended. The opposition document in Log Cabin Republicans v. U.S. (application 10A465)  is here.

The global reach of U.S. District Judge Virginia A. Phillips’ order against enforcement of the policy, Acting U.S. Solicitor General Neal K. Katyal argued, “severely exacerbated the harm” to the U.S. military that would occur without a higher court order blocking the injunction. Moreover, Katyal contended, Phillips’ broad injunction would prevent federal courts in other parts of the country from continuing to examine the validity of the law and regulations.

The government filing, besides resisting any interruption of the overall policy, told the Court that it should also reject the alternative plea by the Log Cabin Republicans at least to impose a temporary ban on any discharges from the services of any individual found to have violated the gay ban.  The entire policy, Katyal asserted, is presumed to be constitutional as all acts of Congress are, and there is “no principled basis” for carving out exceptions.

Gays and lesbians in the military, the government brief added, now have greater protection because Secretary of Defense Robert Gates has recently adopted a services-wide policy that no one may be discharged under the policy without the approval of the highest official in each military department, with consultation with even higher Pentagon officials.  None of the members of the Log Cabin Republicans group now in service is threatened with discharge under this new policy, or even under the former Pentagon approach to discharges, the brief asserted.

The Log Cabin Republicans, a group that advocates equal rights for homosexuals, won a six-year courtroom battle with the government over the constitutionality of the gay ban in the military.  It has sought to allow its victory to be translated into an interruption of the entire policy while the government appeals Judge Phillips’ ruling that the policy is unconstitutional.

The government appeal is currently pending in the Ninth Circuit Court, with a briefing schedule that will mean that a decision there is not likely to come before the middle of March, at the earliest.  The Ninth Circuit issued a stay of Judge Phillips’ injunction to last during the appeal process.

The Log Cabin Republicans’ plea to lift that stay and thus block the policy temporarily, during the appeal, was filed with Justice Anthony M. Kennedy as Circuit Justice for the western part of the nation.  Kennedy has the authority to act on his own, or share the decision with his colleagues.  It is unclear whether Justice Elena Kagan, a former U.S. Solicitor General, will take part if Kennedy refers the matter to the full court.

The challenge in the Supreme Court has arrived amid new reports, circulating in Washington, that Congress — especially in the wake of the wide gains by the Republicans in last week’s election — is not likely to repeal the “don’t ask/don’t tell” policy through the legislative process.  Resistance to repeal is building among some GOP lawmakers, and some high-ranking Pentagon officials — including, most recently, the commandant of the Marine Corps — are mounting new efforts to head off the repeal.

A Pentagon “working group” studying how to implement repeal, if Congress does decide to cast aside the policy, is due to file its report on Dec. 1.  The Administration has argued in federal court repeatedly that it needs time to finish that implementation review, so that there could be an “orderly” switch to life in the military without the ban.

The Log Cabin Republicans presumably will have an opportunity to reply to the government’s objections before Justice Kennedy or the full Court acts on the group’s plea to lift the Circuit Court’s stay order.

Recommended Citation: Lyle Denniston, U.S.: Don’t interrupt gay ban, SCOTUSblog (Nov. 10, 2010, 4:47 PM),