Appeals Court Stays Order That Banned Don’t Ask, Don’t Tell

by Boyce Hinman

A three Judge panel of the 9th U.S. Circuit Court of Appeals has issued a stay of U.S. District Court Judge Virginia Phillips’ order to immediately terminate Don’t Ask, Don’t Tell, effectively allowing the government to continue enforcing DADT and to continue proceedings against any current service members who have violated DADT.

On October 12, Phillips ordered the US Government to immediately terminate DADT, which it has been using to discharge openly lesbian or gay members of the U.S. Armed Services.

In her final order on the issue, Judge Phillips refused the government’s request to stay her order pending any appeal that the government might make to a higher court. Among other things, Judge Phillips said it was unlikely that her opinion would be overturned by the appeals court.

 



However, the appeals court decision on Nov. 1, contradicted Judge Phillips’ assumption that the government was unlikely to win on appeal. It noted that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

In other words, the appeals court was claiming that four other U.S. Courts of Appeal have ruled in favor of DADT.

The 9th U.S. Court of Appeals gave two other primary reasons for putting Judge Phillips’ order on hold until the appeals court has had time to fully consider the issue.

First of all, it said the courts have traditionally assumed that acts of Congress are constitutional. When considering requests to stay orders that overturn an act of Congress, appeals courts have traditionally “accorded great weight to the decisions of Congress.”

They add that, “These principles do not mean, of course, that the individual rights guaranteed by our Constitution have no place in this calculus, but they do counsel careful consideration before final judgment.”

In addition, the three judge panel said that this deference to acts of Congress is at its highest level in Congressional acts under its authority to raise and support armies. The panel asserted that “Courts are ill-suited to second-guess military judgments that bear upon military capability and readiness.”

The panel said it tended to agree with the government’s assertion that the district court’s injunction does not permit sufficient time for appropriate training about ending the ban to occur, especially for commanders and servicemen serving in active combat.

However, the government’s appeal will be considered at greater length by the 9th U.S. Circuit Court of Appeals in the near future. The following schedule has been set for that process.

The government’s full brief, explaining why it thinks Judge Phillips’ order should be overturned is due by January 24, 2011. The answering brief, from Log Cabin Republicans, who sued to overturn DADT, is due February 22, 2011. The government can reply to the Log Cabin Republicans’ brief, if it does so, that reply must be delivered to the appeals court no later than 14 days after the Log Cabin Republicans’ answering brief.

“The Ninth Circuit’s decision to extend the stay is disappointing,” said Sacramento Valley Veterans President Tyson This e-mail address is being protected from spambots. You need JavaScript enabled to view it . “We cannot let this sway our determination to see this costly policy repealed, though. If anything, this development emphasizes the need to begin contacting our leaders to start taking more assertive steps in taking out this policy.”

It is worth noting however, that now that the Republican Party has taken control of the U.S. House of Representatives, it is highly unlikely that the House of Representatives will enact legislation overturning DADT.

The Democratic controlled House did pass such a bill earlier this year, but that bill was never approved by the U.S. Senate. All legislation, of the current session of Congress, not passed by both houses of Congress, and signed by the President, dies at the end of this year. So, an entirely new bill would have to be approved by both houses of Congress. There is some speculation that the Senate may take action before the newly elected Senate and House take office, but most LGBT groups opposing DADT feel that is unlikely.

You may read a full copy of the appeals court’s stay of Judge Phillips’ order at www.calcomui.org/nwsflsh110210.html, then click on the link at the bottom of the web based version of this article.

Boyce Hinman is the founder of the California Communities United Institute. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or calcomui.org

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