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9th Circuit again tells Obama administration to stop discharging gays

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From Lambda Legal's Jon Davidson, via Rex Wockner:

Today's order from the Ninth Circuit rather modestly states that it reinstates the stay of the injunction against enforcement of Don't Ask, Don't Tell "in all respects except one." The order goes on to provide that the injunction remains in effect "insofar as it enjoins [the government] from investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell Policy." In other words, all that today's order does is allow the military to once again stop accepting or processing applications from openly lesbian, gay or bisexual people, for now. Discharges, discharge proceedings, and investigations remain on hold.

The order reflects that the judges are upset that the government provided "considerably more detailed information concerning the implementation of the Don't Ask, Don't Tell Repeal Act ... than [it] did in [its prior] opposition to the motion to lift the stay" and orders the government to supplement its motion for reconsideration by 5 p.m. this Monday "to address why [it] did not present in [its] May 20, 2011 opposition to lift the stay the detailed information now presented in the motion for reconsideration." In addition, the order gives Log Cabin Republicans until 5 p.m. on July 21st to respond to the motion for reconsideration, but then gives the government only until noon the next day to reply. (Can we say "annoyed?")

This whiplash is surely confusing for many people. The administration needs to stop saying that certification under the Don't Ask, Don't Tell Repeal Act is coming soon and just issue it. But, even then, the actual end of the policy won't happen for 60 days after certification. The government has failed to show any reason why the policy cannot be halted immediately other than to claim that the military will respond better if it is not having to do so pursuant to a court order. Imagine if other people ordered by courts to stop violating people's rights similarly argued, don't issue an injunction, just let me fix the problem myself, on my own timetable, while I continue breaking the law!

Oral argument of the appeal has now been set for September 1st, in Pasadena.

Jon W. Davidson
Legal Director
Lambda Legal

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