9th Circuit Grants Government a Stay in the DADT Case

By Karen Ocamb -

The US Court of Appeals for the 9th Circuit granted the US government’s request for a stay of injunction pending appeal in Log Cabin Republicans vs United States of America. That means Don’t Ask, Don’t Tell is back in effect – despite compelling arguments made by LCR’s lawyers last week that DADT is unconstitutional and harmful to the military and lesbian and gay soldiers and the government should comply with District Court Judge Virginia Phillips injunction against enforcement of DADT. (The Ninth Circuit also created a special page for all court filings in the case.)
 
   In an 8-page decision, two of the three panel of judges found that the government’s

“colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military – if that is what is to happen – strong mitigates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.”

   The court concluded that “prudence mandates restraint until the final judgment is rendered.” Judge W. Flectcher respectfully dissented.
Here’s some initial reaction:

Dan Woods, a partner from White & Case representing LCR said:
“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal.  Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the US Supreme Court.”

           R. Clarke Cooper, Executive Director, Log Cabin Republicans, said:

“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights.  In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy.  The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended.  It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

           Servicemembers Legal Defense Network Executive Director Aubrey Sarvis:

“Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame duck session to end this confusion and bring about the finality that is needed. We continue to warn service members that it is unsafe to come out as long as this law remains on the books.”

           Here’s a statement from Servicemembers United Executive Director Alex Nicholson:

“It is really unfortunate that the government has tricked the Ninth Circuit into believing that ‘enormous consequences,’ ‘immediate harm,’ and ‘irreparable injury’ will result from a continuation of the injunction,” said Alexander Nicholson, Executive Director of Servicemembers United and the only named veteran plaintiff in the case. “By the government’s own admission elsewhere, none of these predicted consequences or injuries have come to pass while the law has been enjoined, and the Defense Department has even voluntarily created a de facto moratorium on discharges by further increasing the level of discharge authority. It is concerning that the government can so blatantly pull one over on an appeals court, and it is equally frustrating that such a distinguished court would allow itself to be fooled so obviously and so publicly in the name of ‘deference.’ Abdication is more like it.”

          Lambda Legal wrote an amicus brief in the case. Staff Attorney Peter Renn said:

“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate.  But it’s important to remember what today’s ruling was not:  a consideration of the merits of the case. That remains for another day.
Each day that ‘Don’t Ask, Don’t Tell’ remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the President, who can issue a stop-loss order to put an immediate end to discharges under ‘Don’t Ask, Don’t Tell.’”

-end-