Split 9th Circuit panel stays injunction against DADT

By Nan Hunter -

After taking almost two weeks to decide and with one judge dissenting, a panel of Ninth Circuit Court of Appeals judges has granted a stay pending appeal of the injunction against the Don't Ask Don't Tell policy issued in the Log Cabin Republicans case. Although the policy can again be enforced, the court's actions sent yet another signal that legal support for it is dwindling. Normally it would take the court about a minute to stop an injunction against a federal statute that previous courts have upheld multiple times. Recall the same court's reaction to a similar motion for a stay of Judge Walker's ruling against Prop 8 - the stay was granted in less than a day.
The two judges who formed the majority wrote that "there are three reasons that persuade us to grant a stay pending appeal."
The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal" [citing Cook v. Gates in the 1st Circuit; Able v. U.S. in the 2d Circuit; Richenberg v. Perry in the 8th Circuit; and Thomasson v. Perry in the 4th Cir.].

We ... conclude that the public interest in ensuring orderly change of this magnitude in the military - if that is what is to happen - strongly militates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.

In dissenting, Judge William Fletcher wrote that he "would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military [under DADT] during the pendency of the appeal." Fletcher would have let the military officially continue the DADT policy (as to recruiting, for example), but would have halted discharges. Judge Fletcher also stated that he would have granted oral argument on the stay motion, but the court rules require that at least two judges request oral argument on a motion before one will be scheduled.
Arguably, the Gates memorandum freezing DADT discharges unless they are approved by a new civilian-dominated process achieves what Judge Fletcher would have ordered.
In a separate scheduling order, the court set deadlines for the full briefing of the case (no.10-56634). The government will file its appeal brief by Monday, Jan. 24, 2011. Attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing.
With luck, the policy will be dead before the first brief is due.

for more from Nan visit Hunter for Justice.

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