Monday in DADT: The Case Against the Stay

Posted by Chris Geidner
October 25, 2010 4:14 PM |

Today, attorneys for Log Cabin Republicans filed the organization's opposition to the government's request for a stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy during the course of the government's appeal of the trial-court ruling. The injunction had stopped all enforcement of DADT across the world, but the stay effectively puts the injunction on hold until the Ninth Circuit decides otherwise.

In the filing, Dan Woods argues that the government advanced arguments before the appellate court that it had not made to Judge Phillips, that a stay should not automatically be granted, that the government does not meet the standards for a stay and that a stay would be "more disruptive of the status quo than an injunction." Notably, LCR has requested that the Ninth Circuit hold oral arguments before deciding the stay request.

In one of the strongest paragraphs in LCR's filing, the attorneys summarize the circumstances of the case in the introduction:

The government made no showing to the district court, and makes no showing here, either that it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district court’s judgment remains in place pending determination of this appeal.  By contrast, the district court conducted a careful, extensive analysis of the law, at every stage of the proceedings below.  It concluded, after a full trial at which it heard testimony from over 20 witnesses and received over 100 exhibits in evidence, that DADT causes irreparable harm to servicemembers by its very existence and implementation, subjecting them to investigation and discharge, and chilling their First Amendment rights of free speech and petition, while actually impairing unit cohesion, morale, and discipline – the very factors that supposedly justify DADT.  The district court’s decision was not a political one, nor an instance of “judicial activism”:  it was compelled by the evidence before it, presented at a full trial conducted under our adversarial litigation system.

For more than 8 days following Phillips's Oct. 12 order, the government was not enforcing DADT. Then, on Oct. 20 and at the government's request, the U.S. Court of Appeals for the Ninth Circuit issued a temporary stay so that it could consider whether to grant a stay that would last the course of the entire appeal. On Oct. 21, the Defense Department announced new procedures that would limit who could authorize a DADT-related discharge.

LCR's attorneys had been given a deadline of today to file its opposition to the government's request.

Additionally, Servicemembers Legal Defense Network, Lambda Legal Defense and Education Fund, The Palm Center and Servicemembers United filed their own opposition briefs before the court in the form of amicus curiae, or friend of the court, briefs. Amicus briefs commonly are filed by people and groups interested in the outcome of a case even though they are not a party to the case.

Although, as noted, LCR has requested oral arguments to be held prior to a ruling, the Ninth Circuit is free to rule on the stay issue at any time.

Today's filings:


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