A 9th Circuit U.S. Court of Appeals panel on Wednesday issued an order that the Defense Department stop enforcing Don’t Ask, Don’t Tell, and the Pentagon quickly announced that it will comply.
Lambda Legal Defense called it a “stunning development.” The Human Rights Campaign said it puts Don’t Ask, Don’t Tell “on its last legs.” And nearly everyone congratulated the group that made it happen: Log Cabin Republicans.
The order came in Log Cabin Republicans v. U.S., a class action lawsuit challenging Don’t Ask, Don’t Tell, (DADT), the federal law banning openly gay people from serving in the military.
Log Cabin won the lawsuit last September when U.S. District Court Judge Virginia Phillips in California ruled that DADT violated both First and Fifth amendments of the federal constitution. She then ordered the Defense Department immediately to stop enforcing the ban. But the 9th Circuit granted the Department of Justice’s request to stay the judge’s order until the merits of her decision could be appealed to the 9th Circuit.
Log Cabin asked the 9th Circuit to lift its stay of the judge’s order and, on July 6, a three-judge panel of the 9th Circuit agreed to do so.
The panel, led by 9th Circuit Chief Justice Alex Kozinski, noted that much had changed in the eight months since it initially granted the stay of Judge Phillips’ order.
Congress passed a law last December to overturn the law, but the repeal measure will not take effect until the president, the Defense secretary, and the Chairman of the Joint Chiefs of Staff submit written certification that the military is ready to implement repeal. Then, following a 60-day wait, repeal takes place.
But the panel also noted that the Obama administration, in February, indicated it believes that laws treating LGBT people differently should be given the strongest level of scrutiny by the courts. And earlier this month, the DOJ –in a Defense of Marriage Act challenge, Golinski v. OPM— repeated that argument.
The panel also noted that “the process of repealing” DADT “is well underway… and the preponderance of the armed forces are expected to have been trained by mid-summer.”
Because the “circumstances and balance of hardships have changed,” said the panel, the government “can no longer satisfy the demanding standard for issuance of a stay.”
“This is a stunning development,” said Jon Davidson, legal director for Lambda Legal Defense, which filed a brief in the case. “It shows how important it is that the Department of Justice now recognizes that sexual orientation discrimination should be presumed to be unconstitutional and that courts should examine such discrimination carefully.” Lambda represents attorney Karen Golinski in the Golinski v. OPM case the 9th Circuit panel referred to in its order.
Davidson urged caution, saying the DOJ could ask the full 9th Circuit to reimpose the stay until the repeal of DADT is certified and through its 60-day waiting period.
“While it is yet to be determined whether the final decision will be made by the courts or the Congressionally-mandated certification process, the end of ‘don’t ask, don’t tell’ is close at hand,” said Aaron Belkin, director of The Palm Center, a part of the UCLA Williams Institute.
“We congratulate the Log Cabin Republicans who have never given up fighting to make sure that DADT is finally ended,” said Davidson.
The court noted that the government’s appeal of the lower court decision is still slated for oral argument before the 9th Circuit August 29 in Pasadena.