Ninth Circuit Court Stays DADT Injunction

Jim Burroway

October 20th, 2010

I’ll bet you just had a feeling that this was too good to last, didn’t you? The Ninth Circuit Court of Appeals has granted the Justice Department’s request for a temporary stay of a lower court’s injunction ordering the Defense Department to halt all enforcement of “Don’t Ask, Don’t Tell.”

In a very brief order, Justices Diarmuid O’Scannlain, Stephen S. Trott and William A. Fletcher wrote (PDF: 24 KB/1 page):

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

“Appellee” here are Log Cabin Republicans, which brought the successful suit against the U.S. government in which Federal District Judge Virginia A. Phillips declared DADT unconstitutional. This is a temporary stay, allowing the court time to consider whether there should be a longer-term stay for the duration of the appeal.

It’s unclear what immediate effect this stay will have. Chris Geidner points out that the Defense Department memorandum requiring compliance with the injunction states (PDF: 96KB/1 page):

In the interim, the Department of Defense will abide by the terms of the injunction. It is possible that a stay of the injunction could be issued very soon, perhaps in a matter of days. In that event, I will issue additional guidance.

In other words, DADT remains suspended until the Defense Department issues a new memorandum. If a longer-term stay is granted sometime after October 25, then the Defense Department will probably issue a new memorandum requiring enforcement of DADT again for the duration of the appeals process. That process will likely take the better part of a year.

Update (Oct 21): A new memorandum may come sooner than first thought:

The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the “don’t ask, don’t tell” law, at least for now. Defense Department spokesman Col. Dave Lapan said Thursday that he expects the guidelines be announced later in the day.

Lindoro Almaviva

October 20th, 2010

And the Obama administration is openly questioning why are people staying home this election day.


October 20th, 2010

A couple of things 1) If some 80% of Americans want DADT tossed, then for brownie points for the election, why wouldn’t O’bama toss it now? 2) I’m amazed SF would buckle on the stay, though I am holding out for Oct 25th for their redemption.


October 21st, 2010

See Walter Dellinger’s Op-Ed in the NY Times today. The President is legally prevented by the law itself from ‘tossing’ it. Here’s the link:


October 21st, 2010

Email Congress:

Email Senate:

Call the Congress and Senate: (202)224-3121

*The Operator will direct you if you do not know your representative

Make your calls and letters to Congress polite and to the point.

Jim Burroway

October 21st, 2010

Update (Oct 21): A new memorandum may come sooner than first thought:

The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the “don’t ask, don’t tell” law, at least for now. Defense Department spokesman Col. Dave Lapan said Thursday that he expects the guidelines be announced later in the day.

John in the Bay Area

October 21st, 2010

The president is not legally required to appeal this court’s ruling. He has declined to do so in other cases, as has previous presidents.

This president’s commitment to defending bigotry and maintaining this discriminatory law is truely disheartening. Perhaps our next president will have a stronger commitment to equality for all Americans.


October 21st, 2010

I heard that Obama could issue an executive order putting a moratorium on all DADT discharges.

Is this true? Couldn’t he at least do that?

John in the Bay Area

October 21st, 2010

He could issue a stop loss order at any time. This would prevent discharges for as long as the stop loss order was in effect. It would not repeal the law, like the court ruling did (which he appealed and successfully reinstated the law so that his administration can continue to discharge gay and lesbian servicemembers).

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