A federal appeals court ordered the U.S. government on Wednesday to immediately cease enforcing the longstanding ban on openly gay members of the military.In a brief two-page order, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said the “don’t ask, don’t tell” policy must be lifted now that the Obama administration has concluded it’s unconstitutional to treat gay Americans differently under the law.
More, from Think Progress:
Perhaps most significantly, today’s order shows that the Department of Justice’s recent recognition that anti gay laws are highly constitutionally suspect is producing results. The court expressly relied on this determination by DOJ in reinstating the injunction against Don’t Ask/Don’t Tell.At the same time, however, it does not necessarily follow that the panel would have also struck down DOMA or otherwise resolved a gay rights question on the merits. Today’s order dealt with the narrow question of whether or not a trial court decision striking down DADT must be stayed while the decision is still under appeal. Before issuing a stay, a court must consider factors such as whether a stay will “substantially injure” other parties and whether a stay is “in the public interest.” Today’s order concludes that these factors no longer weigh in favor of a stay now that DADT repeal is imminent and DOJ concedes its unconstitutionality.
The docket text, for those of you who like decoding, as well as reactions are below the fold.Here’s the text of the order:
Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). 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. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed. [7809248] [10-56634, 10-56813] (KD)
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Reactions, as they came in…
SLDN:
(Washington, DC) Army Veteran and Servicemembers Legal Defense Network (SLDN) Executive Director Aubrey Sarvis issued the following statement on the decision by the Ninth Circuit Court of Appeals today to reinstate the injunction on enforcement of the “Don’t Ask, Don’t Tell” (DADT) law in the Log Cabin Republicans vs. United States case.“Today’s decision by the Ninth Circuit Court of Appeals is most welcomed. It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department. In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy.”
Servicemembers United, the nation’s largest organization of gay and lesbian troops and veterans, today enthusiastically applauded the order issued by the Ninth Circuit Court of Appeals lifting its own stay of a lower court’s injunction barring enforcement of the “Don’t Ask, Don’t Tell” law. This move once again renders “Don’t Ask, Don’t Tell” unenforceable by the Pentagon.“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,” said Alexander Nicholson, Executive Director of Servicemembers United and the sole veteran plaintiff on the case. “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.”
The Log Cabin Republicans vs. U.S.A. lawsuit is the only contemporary successful challenge to the constitutionality of the “Don’t Ask, Don’t Tell” law, which requires the Department of Defense to abruptly fire any servicemember found to be gay, lesbian, or bisexual. In 2010, U.S. District Court Judge Virginia Phillips found the “Don’t Ask, Don’t Tell” law to be unconstitutional after a two-week trial, and issued an order barring enforcement of the law worldwide. The Ninth Circuit Court of Appeals subsequently issued a stay of that order pending appeal by the government. Today’s order from the Ninth Circuit overturns its own previous stay, rendering “Don’t Ask, Don’t Tell” once again unenforceable.
Nicholson added, “Servicemembers should still remain extremely cautious with information regarding their sexual orientation for the time being. The issue remains in a state of flux, although guarded optimism is certainly warranted.”
HRC:
Today a panel of judges on the U.S. Court of Appeals for the Ninth Circuit re-instituted an injunction barring the military from enforcing the ban on openly lesbian, gay and bisexual service members. The court concluded that, with “Don’t Ask, Don’t Tell” repeal being implemented and certification of the new policy forthcoming, the government would not be burdened by ceasing enforcement at this time. The order was issued in the appeal of Log Cabin Republicans v. Panetta (formerly Gates), a case challenging the constitutionality of the DADT law. In September 2010, a federal district judge ruled that the law is unconstitutional and the Obama administration appealed that decision. While the Ninth Circuit must still rule on the constitutionality of the law, until it does so, the military will now be enjoined from enforcing DADT. Joe Solmonese, president of the Human Rights Campaign, released the following statement:“Today’s decision is a harbinger that ‘Don’t Ask, Don’t Tell’ is on its way out. With troops trained on the new policy and senior military leaders having said the process is working without significant disruption, DADT is on its last legs. The time for certification is now in order to clearly and plainly wipe this damaging law off the books once and for all.”




Lisa Leff, AP
32 Comments


This Is a BFD!It’s noteworthy that the judges added last Friday’s anti-DOMA argument to their finding here. I’d guess the thing was mostly composed before that was filed, so somebody believed it was most definitely worth the time to edit today’s document to cite it.
Agreed! And. But!It’s important to remember that “not enforcing DADT” applies to not discharging servicemembers for being open about being gay.
It doesn’t (currently) apply to things like keeping people in the jobs they are qualified for or currently assigned to, or to things like promotion, security clearances, approval for training, and so on, nor to benefits that might apply to married servicemembers.
And for that matter, the UCMJ (the governing set of military regulations that supersedes civil law in a lot of cases for military people) still lists sodomy as a crime – and it is defined in such a way that it includes oral sex where there is any penetration, so this applies to lesbians as well as gay men.
It would be tough for the military to justify criminal proceedings leading to discharge for consensual gay sex when simply being gay is not actionable, but it would be legal for them to do so, as it would be legal to use the sodomy regulations as a basis for reduction in rank, removal of security clearances, and, potentially, denial of benefits like retirement.
Now is not the time for people who are successfully in the closet to come out, though it is still wonderful news, and will be a safety net for people who get outed.
Glad to hear itSounds like a step in the right direction.
Wow! Nine fierce advocates!Next up: assorted geeks claiming that Obama’s really the one who deserves credit for this.
How long until the DOD & DOJ rain on the parade?Appealing to SCOTUS in 3… 2… 1…
This was a 3-judge panel, not the entire bench.And, they included the DOJ’s Golinski brief as part of their reasoning, so there is some room for Obama geeks to claim some credit for the administration. That said, this was a decision made by an arm of the government totally independent of the administration. Powerful stuff.
In with the ruling….Is the really great fact that it seems more and more courts are starting to take it as a given that heightened scrutiny applies – which, let’s face it, is true by any application of the rules as put out by the Supreme Court.
If we can get a widespread agreement on this, or better, a Supreme Court ruling that agrees that heightened scrutiny applies to sexual orientation discrimination cases, then it’s really all over but the shouting.
Few peopleFew people would call me an Obama geek. I’ve repeatedly protested this administration and the Democratic leadership and will certainly continue. However, I believe that the Obama administration deserves some credit for this.
Two years ago when the DoJ defended DOMA, many of us were furious. President Obama punted on his opportunity to lead on this issue. Now that he’s gotten around to it, his administration’s anti-DOMA brief has (as stated by the court) already helped in bringing down a different bit of discrimination. He’s actually now done what we asked, and at first glance, may benefit our community in the way we malcontents envisioned.
We have to keep the pressure up because we still have a long way to go on a myriad of issues. But there is still something to be said for the administration to finally doing something we demanded and getting the kind of result we expected from that demand.
well said
next step would be an appeal to the 9th, en banc …… If they wanted to drag it out. However, the decision notes that the Administration’s half-steps in court and in Congress suggested to the 9th that it might as well end the discharges now. Just as well, the courts really don’t like litigating stuff needlessly.
Say, aren’t there some crooked bond traders the ODOJ should be prosecuting?
They can skip the Ninth en bancand go directly to Kennedy. Or not, if they want two bites at the apple. It strikes me as not worth the political blow back of fighting it if we really are just weeks away from certification. Particularly as the DOJ’s own Golinski brief now may be LCR’s most potent counter argument. Their chances of winning are shrinking.
But who knows? There seems to be a lot of garment rending at the DOD over letting go of “the precious.” Maybe the DOJ will appeal this order.
Okay, 3.But it was unanimous.
It was the Obama administrationthat fought the original injunction. If they had simply obeyed it, DADT enforcement would have stopped long since. Giving them credit for having the injunction reinstated now seems pretty silly.
I don’t hink you’re an O-geek but I wonder if you’re not confusing election hoopla with progress. 1) Both DADT and DOMA are bigoted right wing bills signed by Democrat/bigot Bill Clinton which Congressional Democrats and Republicans voted for overwhelmingly (except that a few Republicans voted against DADT because it wasn’t mean enough.) Even U.S. Senator Barbara Mikulski, D. Maryland voted for DOMA.
2) Obama’s record is clear and so is the record of Congressional Democrats. Opposition to same sex marriage is bigotry and that makes Obama and many Congressional Democrats bigots. Congress refused to repeal DOMA. Obama supported DADT recently and is still enforcing DOMA and supporting it in bankruptcy courts.
3) As I see it thinking that Obama is on our side is fanciful projection, not reality. What little he does on DADT, which in my opinion is meant primarily to harvest GLBT cannon fodder, won’t begin to end military bigotry. That will go on and on just like the epidemic of rape against female soldiers. What little Obama and Congressional Democrats do on DOMA, except in court, is too little and 15 years too late. They had commanding majorities from 2008 to the fall of 2010, when their ogt betrayed and by then enraged constituents pulled the rug out from under them. They could have ended DADT and DOMA and passed ENDA.
But they didn’t. They chose not to. That tells us all we need to know.
4) I agree we have to keep up the pressure but not by voting for Democrats, that’s as futile as it gets. We have to ratchet up the pressure by a open ended campaign of demonstrations and actions locally, regionally and nationally. That’s what won suffrage and reproductive rights. That’s what built the unions and that’s what ended the War in Vietnam. Reelecting Obama will just make things worse. On Tuesday, November 6th, 2012 vote socialist, vote left or just sit it out. Instead of worrying about which right wing candidate wins concentrate on building mass movements to win our agenda
Damn straight Obama deserves some creditAnd I’m not the only one who thinks so: THE COURT OPINION ITSELF says that THE OBAMA administration’s change of position on this is relevant. You’re just a hater who won’t take YES for an answer.
Thinking that the Obama administration OPPOSED everything they filed “against”is ridiculous. There are LEGAL PRINCIPLES AND PRECEDENTS invoked here and building the case UP ONE LEVEL at a time IS HELPFUL. The DOJ is legally obligated to defend federal law. Substituting ITS OWN judgment FOR the federal courts’ about what is or isn’t federally constitutional IS RISKY and risks getting surprised by the other side’s innovations further up the chain. Following and applying the past precedents is a better way to expose what might be wrong with them.
And if you think giving them credit for getting the injunction lifted seems silly, all I can say is, THE THREE JUDGES DISAGREE WITH YOU. THEY are giving credit.
The fact that it is Kennedy will make a difference (in a good way)He has been ruling the country with an iron fist ever since Sandra Day O’Connor retired from the position. And he was with us in both Romer v. Evans and Lawrence v. Texas.
We are sort of lucky in that the 1 judge we will have to go through is the same 1 who will be the swing vote in the 5-4 final decision of the outcome.
Credit for THIS?WASHINGTON, DC, July 5, 2011 – Sue Fulton, a founding Board Member of OutServe, the association of actively serving LGBT military personnel, was appointed today to the U.S. Military Academy Board of Visitors. Fulton, who graduated in 1980 with the first West Point class to include women, is the first openly gay member of the Academy’s Board.
Thanks to QScribe et al. for shaming him into it.
He clearly couldn’t have “evolved” without you.
Clearly, the Log Cabin Republicans who brought the
suit and the 4 Republicans who switched in New York
deserve more credit than somebody who dragged his feet
for 2 years.
This is just stupid[What little he does on DADT, which in my opinion is meant primarily to harvest GLBT cannon fodder, won't begin to end military bigotry] It almost does not even MATTER whether the BIGOTRY ends. Bigotry IS AN INTERNAL MENTAL STATE. What MATTERS is whether the DISCRIMINATION ends. What matters is whether THE DISCHARGES and the other forms of unequal treatment end. If Bigots want to keep feeling BAD about the changes, THEN GOOD: Bigotry OUGHT to be painful; bigots OUGHT to to feel bad. As for the discharges themselves, on the other hand, at least for orientation alone, THEY STOP NOW.
We DON’T have to worry about THAT going on and on.
And your telling gay people to sit out this election ought to just be grounds for banning, frankly.
[Instead of worrying about which right wing candidate wins concentrate on building mass movements to win our agenda]
Building mass movements AND VOTING are NOT MUTUALLY EXCLUSIVE,
DUMBASS !!!!!!!!!!
An electoral campaign IS a mass movement!
Yes, just as LEGALLY OBLIGATEDto defend DOMA. Well, that is until they weren’t anymore. Heard this before.
The four Republicans in NYabsolutely deserve more credit for NY’s marriage equality than Obama. They voted and fought their own caucus for it. Obama didn’t lift a finger for NY’s marriage equality. Why would he deserve any credit?
I will be paying very close attention to the weekend news dumpI am expecting that on Friday late afternoon, the Administration will announce its intention to continue fighting in favor of DADT, starting with a request for an emergency stay of the District Court “pending appeal to the United States Supreme Court.”
Obama will deserve credit when he FINALLY decides to certify DADT repealAND if 60 days after that, it finally goes into effect without some rider attached to a defense appropriations bill that the fierce advocate just HAS to sign.
Obama didn’t file this lawsuit — the Log Cabin Republicans and others did.
Obama didn’t appoint these judges — Reagan and Clinton did.
Obama didn’t even vote to confirm these judges as he wasn’t in the Senate yet.
No. Obama get no points for this one.
When one day he F-I-N-A-L-L-Y has his administration certify DADT repeal and 60 days later it actually happens… then and only then can credit be properly given.
No credit for a job not done.
Since you tried to claim just last weekthat Obama had already repealed DADT, why are you even in this discussion? You were wrong then, and you’re wrong now.
I’d bet the farm on it.
Oh, cloudy’s back. cloudy, it doesn’t seem as if you’re connecting the dots.
DADTs legally mandated discriminatory discharges are a Democrat policy and just one of the problems we face in the military. Un-mandated discriminatory discharges as well as other forms of discrimination, harassment, violence and rape will continue unabated. The only reason legally mandated discriminatory discharges may end soon is that Obama wants more cannon fodder. Right now he’s forcing soldiers to stay in the military for years (or until they get killed or wounded) with ‘stop loss’ orders, forcing young working class folks to choose between jail and the military and fast tracking the US citizenship applications of reactionary foreign mercenaries in the military.
Clintons bigoted DADT led inexorably to the murder of gay PFC Barry Winchell, born 31 August 1977 and bludgeoned to death on 6 July 1999. In the same fashion the bigotry among the christer officer class and it’s political leaders, including Obama – a bigot because he opposes same sex marriage – is the trigger that causes the discrimination, harassment, violence and rape that GLBT soldiers face today.
Bigotry, like racism or misogyny, is a political act, not a state of mind.
Sitting out the elections is another political act and, unlike Obama’s despicable bigotry, it’s an entirely legitimate and progressive act. So is exercising your vote as a protest vote. Both are aimed at helping to break the Democrats (and Republicans), the twin parties of war, economic disaster, racism, bigotry and misogyny. The sooner people stop being deluded into voting for our enemies like Obama the better off we’ll be.
Voting is not a mass movement, but it most certainly is a massive exercise in deception and treachery on the part of Democrat (and Republican) candidates and a massive exercise in futility on the party of those who vote for them. People have been voting for Democrats and Republicans since the end of the Civil War but the only things that have really changed our lives are the mass movements that got us suffrage and reproductive rights, unions, the voting rights and civil rights acts and the mass movement that defeated Democrat LBJ’s aggression in Vietnam, sending the US military brass scurrying home, tails between their legs and saving the lives of countless civilians and GIs’.
As for banning me, I think some people agree with you. Especially those who want everyone to make the same mistake twice and vote for Obama again.
And by the way, might I suggest you check of the Blend’s TOS?Your personal attacks on people you disagree with are becoming increasingly strident. MODERATORS. PLEASE TAKE NOTE. And TOS to one side, if the only point you can score in a discussion is to call the other person “dumbass,” you’ve lost.
So, your guesses are “facts,” are they?Kennedy has swung both ways on large numbers of cases. We won’t know how he’ll swing on this till we get the decision. Obama will almost certainly appeal.
Believe me,you’re not anything like the particular geek I had in mind with that comment.
But seriously, the Obama administration have fought like rats to keep DADT in place and active. I know you can’t have missed that. If they hadn’t fought the original injunction this new ruling would never have been necessary at all.
I’m reminded of an exchange in Billy Wilder’s great farce One, Two, Three:
Let’s save our gratitude for the time when Obama decides not to appeal this ruling (and I wouldn’t hold my breath).
Only last week you were praising Obama’s decision not to defend DOMA.Now you’re claiming he has an obligation to defend federal laws. Which is it? Will you be pressing the White House to start defending DOMA again?
Bye Byecloudy, you were given ample warnings last week about ratcheting back the personal attacks. Abusive language is inimical to reasoned conversation and will not be tolerated here.
Uh…no.When you get sued, you have to show up.
The DOJ is the government’s lawyers. When the government gets sued, they have to show up. That makes them legally the defendants. And so, strictly speaking, it is up to them to defend the government’s position.
That’s not the same as defending the law, or defending all aspects of a law.
You can make a case that the government has to enforce laws that are on the books until they are overturned or repealed. But defend them as in justifying the insupportable? Not so much.
If Congress passes a clearly Unconstitutional law and refuses to repeal it, getting it declared unconstitutional is pretty much the only way to get it cleared up. The DOJ works for a different branch of government. Checks and balances.