In an order issued by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, U.S. District Court Judge Virginia Phillips’s judgment halting the worldwide enforcement of “Don’t Ask, Don’t Tell” as a result of her decision in Log Cabin Republicans v. United States has been put back in effect.
DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit or the U.S. Supreme Court pending an appeal of today’s decision.
Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials “are studying the ruling with the Department of Justice” but added, “We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order.”
The three-judge panel — Judges Alex Kozinski, Kim Wardlaw and Richard Paez — decided to lift the appellate court’s earlier stay of Phillips’s order pending the appeal of the LCR case because, the judges write, “The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.”
Among the circumstances cited by the court are the July 1 filing in Karen Golinski’s federal case seeking health insurance benefits for her wife and the related earlier Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications — such as DADT.
The judges also note that “the process of repealing Section 654 [– the DADT law –] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer.” Smith echoed this fact, writing to Metro Weekly, “[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away.”
Alex Nicholson, the executive director of Servicemembers United and a plaintiff in the case, issued a statement, saying, “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.”
Obama signed the Don’t Ask, Don’t Tell Repeal Act into law on Dec. 22, 2010 — 200 days ago this Sunday, July 10. On June 29, at a White House LGBT Pride Month Reception, President Obama said that the certification required under the act — by him, the defense secretary and the chairman of the Joint Chiefs of Staff — would be coming in a matter of “weeks, not months.”
Nicholson noted today, “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.”
LCR executive director R. Clarke Cooper said in a statement, “As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step. Log Cabin Republicans are proud of our role in ending this unconstitutional and un-American policy once and for all.”
Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, praised the Ninth Circuit while noting in a statement that the move could have been rendered unnecessary if the administration had proceeded more quickly with certification.
“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,” he said. “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.”
Human Rights Campaign president Joe Solmonese concurred with Sarvis, noting, “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.”
Leslie Cooper, senior staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, said in a statement, “Today’s ruling underscores the fact that there is no reason for leaving this discriminatory policy on the books. The Department of Defense must certify its repeal as soon as possible so all service members can serve their country with honesty and dignity.”
In addition to lifting the stay, the Ninth Circuit set arguments on the appeal of the merits of the LCR case itself — as opposed to the stay of Phillips’s order pending the appeal, which was what the judges altered today — for the week of Aug. 29.
White House and Justice Department spokespersons did not respond to requests for comment.
Read the order: 111.pdf