Wednesday, July 6, 2011

Don't Ask, Don't Tell Enjoined, Again

"I'll be true to you in the whole world"

The United States Court of Appeals for the Ninth Circuit has lifted the stay of Judge Virginia Phillips worldwide injunction of "Don't Ask, Don't Tell" entered in October 2010 after trial in a case brought by the Log Cabin Republicans.  In an order (here) by a three-judge panel comprising Chief Judge Alex Kozinski and Circuit Judges Kim McLane Wardlaw and Richard Paez, the court put the injunction back into place against the military exclusion policy.  Theoretically, a lesbigay person could right now (as of my writing this afternoon, Wednesday, July 6) go into a recruiter's office, identify as lesbian, gay, or bisexual, and be allowed to enlist or start the process.

Interestingly, one of the factors to which the court pointed in its analysis was the  Department of Justice's July 1, 2011 brief in Karen Golinkski's federal lawsuit seeking to have the Defense of Marriage Act or DOMA declared unconstitutional.  The Obama administration followed up its February 2011 announcement that it would not defend DOMA because the law is unconstitutional under the heightened scrutiny that the Justice Department concluded applies (see entry here).  DOJ's brief in Golinksi affirmatively argues this position, at more length than Attorney General Holder did back in February.  Although the brief contains a footnote distinguishing the military context from the marital context, it was the brief's position on heightened scrutiny that the Ninth Circuit relied on in reinstating the injunction against "Don't Ask, Don't Tell."

What still remains to be seen is the Obama administration's response.  It had originally sought the stay of the injunction to give the military time to prepare an orderly transition.  Now, the Ninth Circuit panel concluded that the military has had enough time, most of the enlisted servicemembers have been trained in preparation for the final repeal of "Don't Ask, Don't Tell" (whose repeal Congress authorized), and the balance of hardships has tipped back in favor of those whose constitutional rights are being violated daily by the continued enforcement of the military exclusion.  The Administration could seek to have a stay re-entered.  A request for a larger panel of Ninth Circuit judges to rehear the case "en banc" seems unlikely, as such an 11-judge panel would automatically include Chief Judge Kozinski if it follows the same rules for rehearings of merits decisions (as contrasted with this procedural decision).  So any appeal seems more likely to be made to Anthony Kennedy, the Supreme Court Justice in charge of emergency motions from the Ninth Circuit, or to the full U.S. Supreme Court.  Whether they would reimpose a stay when the underlying statute is clearly not long for this world and the military is close to final repeal is a different matter.  And it's also unclear why the Justice Department might want to seek an appeal under these circumstances, though a general sense that the military does not like courts telling it what to do could be a consideration.

[edited to add link to the order lifting the stay, 8:24 p.m. PDT 20110706]

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