Court Keeps DADT in Effect

Ruling means military's ban on gay service in place through 2011 absent congressional, executive action

With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay on Nov. 1 of the injunction of the military’s “Don’t Ask, Don’t Tell” policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government’s appeal of Log Cabin Republicans v. United States.

The immediate impact of the ruling, which was not unexpected by legal observers, means that – absent congressional or executive action – DADT will remain in effect through at least spring of 2011. The practical timeline for the appeal, however, means it actually would remain law much longer.

“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “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.”

In dissenting, Judge William Fletcher wrote, “I would allow the district court’s order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal.”

The two judges who supported the stay – Judges Diarmuid O’Scannlain and Stephen Trott – responded, writing, “In our view, this ‘carve out’ is inconsistent with the stay itself and would be subject to the vagaries of the rule of unintended consequences.”

R. Clarke Cooper, executive director of LCR, said in a statement, “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform.”

“Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights,” he continued. “In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy.”

The timeline for the appeal means that the briefing in the case will not be complete until March 2011, after which time an oral argument likely will be scheduled.

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