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Ninth Circuit lifts stay on Log Cabin’s DADT victory. Policy unenforceable immediately

Timothy Kincaid

July 7th, 2011

[Sorry folks, I thought I had posted this yesterday but I guess I forgot to hit “publish”]

From the LA Times

A federal appeals court in San Francisco issued a ruling Wednesday that ends enforcement of the law banning openly gay people from serving in the military, citing the Obama administration’s recent determination that gays and lesbians have suffered a history of discrimination.

The statute known as “don’t ask, don’t tell” was ruled unconstitutional by U.S. District Judge Virginia Phillips in September, and a ban on its enforcement was imposed a month later. The U.S. 9th Circuit Court of Appeals stayed Phillips’ ruling, though, while it was being appealed and to allow the Defense Department time to prepare for integrating gays into the armed services.

A three-judge panel of the appeals court lifted that stay in a two-page order Wednesday, granting a motion brought by the Log Cabin Republicans, a gay-rights advocacy group that sued the federal government over “don’t ask, don’t tell” seven years ago.

There are several reasons why this case is important.

First, should the Ninth Circuit uphold the victory as seems likely, it takes the matter out of the hands of any future hostile administration or Congress. While it’s unlikely that Congress would reinstate the ban, it removes the possibility.

As importantly, it alleviates the possibilities of delaying tactics or conditional reversal or partial retainment of discrimination. Matters of housing or full inclusion cannot be accepted as “policy” but would be held to the scrutiny of constitutional challenge and those establishing or administering such policy would keep that in mind.

But most importantly of all, I believe that this is the first time that a Federal Circuit Appellate Court has taken the position that a stay on the reversal of a discriminatory policy was more harmful to gay people than to those seeking to uphold the discrimination. THAT’S A BIGGIE, FOLKS. And it establishes a precedent that reflects an entire shift in perspective. The presumption no longer is in favor of the status quo.

Further, this is fascinating in that the Ninth Circuit cited the Administration’s new views about anti-gay discrimination requiring heightened scrutiny. Remember, the Ninth Circuit has yet to rule on the Perry v. Schwarzenegger appeal and (should the Proponents be deemed to have standing), if the same consideration is given then it seems likely that the ruling will stand.

And I would not be surprised it Olson and Boies immediately filed a motion to have the stay lifted on Perry.

UPDATE:
The original title of this posting was inaccurate. The Ninth Circuit did not uphold Log Cabin’s victory over DADT but rather lifted the stay during appeal.

Comments

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Chris McCoy
July 7th, 2011 | LINK

I have been unable to find any news stating if the Obama administration plans to appeal the ruling to the full Circuit or to the Supreme Court? Do they intend to let the ruling stand?

Also, I am unclear if this is a ruling just on the stay itself, or a ruling on the the full DADT(DP) repeal.

Priya Lynn
July 7th, 2011 | LINK

I’m not clear, is the 9th circuit still hearing the appeal or has it upheld the ruling

F Young
July 7th, 2011 | LINK

The Ninth Circuit’s jurisdiction is only over the western USA roughly.

The articles I have read seem to assume that this decision affects DADT over the entire USA. In practice, is that right?

DN
July 7th, 2011 | LINK

[Sorry folks, I thought I had posted this yesterday but I guess I forgot to hit “publish”]

Man, do I feel you, there. The number of times I’ve e-mailed my work off to my bosses and not waited for the giant attachments to make it through my outbox!

Jimmy Mac
July 7th, 2011 | LINK

Any LGBT person in the military who takes this as carte blanche approval to “come out” is a great big fool!

This ain’t over til it is over!

andrewdb
July 7th, 2011 | LINK

1. Not clear if the admin is going to appeal this.

2. The ruling by the trial court was an injunction that applied worldwide before it was stayed. Now the stay has been lifted the original injunction of the trial court is effective and will apply worldwide.

3. The hearing on the merits of the appeal were accelerated and will now be hear at the end of August.

This puts the situation back to what it was for the 8 or so days immediately after the trial court ruled.

As Timothy noted, this was based in (large?) part on the administration’s filings late Friday night in the _Golinski_ case re DOMA – that case is still at the trial court level in the Northern District of Cal (ie, San Francisco) and not yet anywhere near the court of appeal level – but it is the same lawyers (DOJ) and same client (USA). One can’t argue both sides of the same issue at the same time and not expect the court eventually to notice!

Timothy Kincaid
July 7th, 2011 | LINK

F Young,

When Judge Phillips made her ruling, she made it “world wide”. The military has already said that it would abide by her ruling and the lift of stay and it appears that this will also be world wide.

Timothy Kincaid
July 7th, 2011 | LINK

andrewb,

I think you’ll find the DOJ filing in Golinski to be interesting.

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