‘Don’t Ask, Don’t Tell’ to remain in effect during appeal, court rules



A federal appeals court on Monday ordered “Don’t Ask, Don’t Tell,” the military ban on openly gay service members, to remain in effect indefinitely while the Justice department challenges a lower-court opinion declaring the “don’t ask, don’t tell” law unconstitutional.


The 9th U.S. Circuit Court of Appeals ruling extends a temporary stay issued on Oct. 20 lifting an injunction imposed the week prior by U.S. District Judge Virginia Phillips, who had barred further enforcement of the law.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals means that the policy remains in place while the government appeals a federal judge’s ruling against it. One of the three judges on the panel dissented against parts of Monday’s decision. [via CNN]

In response to the panel’s ruling, the Log Cabin Republicans, a GOP gay rights group that filed the lawsuit against the “don’t ask, don’t tell” policy, can now appeal it to the full 9th Circuit appellate court and or make an emergency application directly to the U.S. Supreme Court.

In Monday’s ruling, the judges said they had to weigh the harm of continuing the ban against the potential harm in forcing the military to drop the “Don’t Ask, Don’t Tell” policy before it is ready.

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay.

“The court’s ruling is a disappointment not only to us, but also to all gay and lesbian service members who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans.

The Log Cabin Republicans filed suit in federal district court against “Don’t Ask, Don’t Tell” in 2004. The case went to trial in Riverside, California in July of 2010, and Phillips ruled on September 9, 2010 that the policy violated the First and Fifth Amendments of the Constitution.

Full stay order from the 9th U.S. Circuit Court of Appeals here (PDF).

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