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9th Circuit leaves ‘Don’t Ask, Don’t Tell’ in place; prohibits investigations, discharges

Saturday, July 16, 2011

The 9th Circuit U.S. Court of Appeals granted an emergency order Friday night, temporarily reinstating its original stay of an order that had prohibited the government from enforcing Don’t Ask, Don’t Tell.

But the three-judge panel, led by 9th Circuit Chief Judge Alex Kozinski, prohibited the government from “investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy” and indicated it would rule later this month on whether to extend the stay.

The temporary reinstatement of the stay continues the extraordinary state of flux in the status of the federal law banning openly gay people from the military.

Last September, a federal district court judge ruled Don’t Ask, Don’t Tell (DADT) to be unconstitutional and ordered the government to stop enforcement of the law immediately and worldwide. The 9th Circuit granted a stay of that order on November 1. Congress, in December, passed a law providing for DADT to be repealed — but only after an indefinite period of training, written certification by the President, the Secretary of Defense, and the chairman of the Joint Chiefs of Staff, and a 60-day delay.

Then, July 6, in a move that Lambda Legal Defense characterized as “stunning,” the 9th Circuit issued an order lifting its stay. The Pentagon said it would comply, but then, on July 11, the 9th Circuit gave the government 10 days to “show cause” why the court should not dismiss as moot an appeal seeking to defend “Don’t Ask, Don’t Tell.”

U.S. Assistant Attorney General Tony West filed the DOJ’s response July 14 (and a slightly amended version July 15), asking for an emergency order to reinstate the original stay “and permit the orderly process for repealing [DADT] to resume.”

In doing so, DOJ essentially reiterated the 9th Circuit’s own reasoning in granting the original stay. DOJ said “an abrupt, court-ordered end to [DADT] would undermine carefully crafted efforts of the political Branches to bring about an orderly transition in policy.”

But DOJ also provided new information that appears to have made a difference to the 9th Circuit panel. It submitted a statement from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness. The statement, among other things, said the military expects certification “will be presented for decision” to the Secretary of Defense and the Chairman of the Joint Chiefs of staff “in late July or early August.”

“In the meantime,” said the amended request, “a new, more rigorous process was put in place for evaluating discharges under [DADT].” And it noted that, since the DADT repeal measure was passed, “one Service member has been discharged under [DADT] and that individual requested an expedited discharge.”

DOJ also responded July 14 to the 9th Circuit July 11 order that it “show cause” why the court should not dismiss as moot the government’s appeal in Log Cabin Republicans v. U.S.

The government argued that the 9th Circuit should not find the appeal moot “because a live controversy remains regarding the constitutionality of the statute as it now exists.”

“But even that controversy will become moot once repeal of [DADT] becomes effective 60 days following the President’s certification; and,” said DOJ, “once this case becomes moot, under the Court’s established practice it would vacate the district court’s judgment and global injunction, and remand with instructions for the district court to dismiss the complaint.”

South Carolina

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23 more reader comments:

  1. when am I ever going to be able to be with who I want with out looking over my shoulder. this needs to pass akk the way through

    Posted on Friday, July 15, 2011 at 11:43pm
  2. *all

    Posted on Friday, July 15, 2011 at 11:43pm
  3. Oh for fuck sake! Give this dance a rest and let’s get on with way more pressing issues!!

    Posted on Saturday, July 16, 2011 at 12:02am
  4. Ridiculous.

    Posted on Saturday, July 16, 2011 at 12:17am
  5. You will always have to like over your shoulder because of the homophobes. They plauge us everywhere, unfortunately.

    Posted on Saturday, July 16, 2011 at 12:18am
  6. More waste of taxpayers monies!

    Posted on Saturday, July 16, 2011 at 12:19am
  7. The homophobe are not in the ranks as much as they are in the brass and DC. Deflection of guilt and excuses, excuses,excuses!!! This needed to be immediately implemented. They want to drag it on until next election and hope they get a Republican in office to change it.

    Posted on Saturday, July 16, 2011 at 4:08am
  8. DADT may be gone, but I’m not willing to come out to anyone that I don’t trust among the ranks. I mean, it’s such a flip-flip of confusion. I feel like Washington just keeps putting it off until some gay-hating republican who actually has a backbone decides to reverse the policy. I appreciate the progress we’ve made in 2011, but honestly, it kind of reminds me of back in the day when black people were given rights on paper but still struggled to obtain their basic rights in day-to-day life. I never thought I would be so jaded, but is the repeal of DADT and the upcoming hearings on DOMA just a reason to make the big man feel like he’s at least hearing the case of civil liberty? Sometimes, I just feel defeated.

    Posted on Saturday, July 16, 2011 at 6:28am
  9. I don’t understand why they can’t just make a decision and stick with it. They declared this was unconstituational, WHY is it still in place?

    Posted on Saturday, July 16, 2011 at 8:02am
  10. What do you mean ridiculous?! This is good news. 0_o I’m confused. Its saying dadt was repealed right? It says dadt in place and is not allowing investigations and discharges. Am I reading this wrong?

    Posted on Saturday, July 16, 2011 at 8:02am
  11. This is getting rediculous!

    Posted on Saturday, July 16, 2011 at 8:21am
  12. Yes you are they reinstated dadt but they are doing a witch hunt

    Posted on Saturday, July 16, 2011 at 8:26am
  13. Transition should’ve been done already. We’re just talking about soldiers being free not to be ashamed of who they are and other soldiers who are only asked to mind their gawddamn business here. So what transition are they asking for?

    Posted on Saturday, July 16, 2011 at 8:32am
  14. …and then the dinosaurs, unaware that they were dead, took emergency measures.

    Posted on Saturday, July 16, 2011 at 9:05am
  15. This country is a joke

    Posted on Saturday, July 16, 2011 at 9:11am
  16. I was in the USMC 68-71, this will be a dramatic change when the process is complete. Change takes time. I do not want the next right winged congress or president to get it overturned. Do you? Have patience with the process.

    Posted on Saturday, July 16, 2011 at 9:46am
  17. An “emergency order”?! What’s the big emergency that makes discrimination necessary?! I’ve yet to hear an answer to that.

    Posted on Saturday, July 16, 2011 at 10:12am
  18. Emegency? Really? That is insane! How does people having the right to not have to hide who they are constitute an emergency? The budget, unemployment and wars — now those are emergencies!

    Posted on Saturday, July 16, 2011 at 10:50am
  19. Dramatic change? As if! Dramatic change in the minds of bigots, yeah!

    Posted on Saturday, July 16, 2011 at 12:02pm
  20. I hate to be completely off subject but idk who to contact and I had talked to whoever answers for this page on another comment but I lgbtqnation still will not load… :( I had another friend with a bb and different provider try and it won’t load for her either… Is it not available on mobile anymore or just not available on bb… We miss the site SO freeking much lol… We feel like we don’t know anything that’s going on… If anyone knows a way to get around this or something can you PLZ let me know… Were having withdrawals… Again… Sorry to get completely off subject…

    Posted on Saturday, July 16, 2011 at 6:31pm
  21. Ohhh ok I c

    Posted on Sunday, July 17, 2011 at 1:00am
  22. If you’re GLBT don’t join the military. War is a straight man’s disease. Leave it to them to kill each other. We’re too valuable. If you really want to die young, suffer a life shrinking head injury or have parts of your body blasted off before you’re even out of your 20′s then wait a few more years and you’ll be able to be out of the closet when your mother gets presented with that triangle folded flag to put on your coffins. Until then, we’re not welcome.

    Posted on Monday, July 18, 2011 at 8:50pm
  23. As I watch Obama manipulate this each time when we get closer to a court ordered end to discrimination which would effect the extension of benefits and acceptance of gay families he makes a move to make sure that doesn’t happen.

    Why would the DOJ talk the court into an order that extends a policy while it can’t be enforced through investigation or dismissal? How does that discrimination help the military if they can’t kick the subject out or even investigate a self claim that someone is gay.

    endgame gays don’t deserve civil rights, it’s different.

    Posted on Thursday, July 28, 2011 at 9:43pm