The Ninth Circuit Court of Appeals lifted the stay of the District Court's injunction against enforcing DADT. When DADT was found unconstitutional in the Log Cabin case last October, the District Court judge issued an injunction against its enforcement. And, Judge Phillips refused to grant a stay pending appeal. Despite numerous requests (including 21 U.S. Senators) that the Department of Justice not appeal this decision, DOJ did. DOJ also immediately went to the Ninth Circuit asking for a stay pending appeal, which was granted. Today, the Ninth Circuit lifted that stay, meaning DADT can't be enforced anywhere in the world.
From the Order:
Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.Wow. The circumstances have indeed changed. Things are finally starting to unfold as they should in the courts. It sure seems like DADT can no longer be enforced, worldwide.
Aubrey Sarvis, the head of SLND, just told me the following:
It means the court's order is back in effect, that DADT cannot be enforced by DOD. It means DOD has to make a decision on whether it will show up in court the week of August 29th for oral arguments in Pasadena to challenge this order. Of course, the department could also seek to go directly to the Supreme court, but I think that highly unlikely. This means, the President, Sec. Gates, and Admiral Mullen should have acted much sooner on certification. This underscores that this court has become impatient with the protracted process at the pentagon.SU's Alex Nicholson, a plaintiff in the case, issued this statement:
SLDN again urges service members to NOT come out until we have finality on this matter. We could see another turn or two before this matter is brought to a final conclusion. In the interim, we urge service member to err on the side of caution. But certainly this is another big and joyous day for gay and lesbian service members
"With the wait for certification dragging out beyond a reasonable time frame, the Court has once again stepped in to require the Pentagon to stop enforcing 'Don't Ask, Don't Tell,' and this time it very well may be for good. I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law."Meanwhile, SLDN's Emily Sussman reports that House GOPers, including the extreme homophobe Virginia Foxx, are still trying to derail repeal. The haters really are living in a different world than the rest of us.
UPDATE: Jon Davidson, the legal director of Lambda Legal, just added the following (via Rex Wockner):
The injunction issued by the district court in the Log Cabin Republicans' challenge to Don't Ask, Don't Tell is back in effect. The government is enjoined from enforcing DADT anywhere in the world -- that means, not only no more discharges, but also no more processing for discharge of those who might violate DADT.
This, of course, was the situation that existed for 8 days, before a different set of Ninth Circuit judges issued the stay of the injunction in the Log Cabin Republicans case. Nonetheless, this is a quite stunning development. It shows just how important it is that the Department of Justice now recognizes that sexual orientation discrimination should be presumed to be unconstitutional and that courts should examine such discrimination carefully, as the Department of Justice forcefully argued in its brief filed last Friday in our Golinski case, which today's Ninth Circuit order expressly referenced.
But, how safe it is to come out depends on what happens next. The government could ask the Ninth Circuit judges who just lifted the stay to reimpose it while they ask a larger group of Ninth Circuit judges to again issue a stay or while they ask the Supreme Court to reimpose the stay. Even if the 3 Ninth Circuit judges who just lifted the stay refuse to do that, the government could ask the larger group of Ninth Circuit judges or the Supreme Court to reimpose the stay.
