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Ninth Circuit Lifts Stay On DADT Injunction

July 06, 2011 5:18 pm ET by Carlos Maza

A three-judge panel of the 9th U.S. Circuit Court of Appeals issued an order on Wednesday effectively ending the enforcement of Don’t Ask, Don’t Tell (DADT). The panel voted unanimously to lift a stay on a lower court’s injunction barring DADT’s enforcement. From the order:

The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.

In explaining why it decided to lift its stay, the panel referred to the Obama administration’s decision to stop defending the Defense of Marriage Act (DOMA) in court, as well as its recently-filed legal brief in Golinski v U.S. Office of Personnel Management:

[I]n the context of the Defense of Marriage Act, 1 U.S.C.§7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”).

A Defense Department spokeswoman told Metro Weekly that the department intended to follow the Ninth Circuit’s order:

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The order effectively ends enforcement of DADT, even as Republicans in the House continue to drag their feet on repealing the law.

LGBT rights groups praised the Ninth Circuit’s decision and urged the Obama administration to complete the process of certifying the law’s repeal.

R. Clarke Cooper, executive director of the Log Cabin Republicans:

The ruling by the 9th Circuit in Log Cabin Republicans v. United States removes all uncertainty – American servicemembers are no longer under threat of discharge as the repeal implementation process goes forward. As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step.

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network:

Today’s decision by the Ninth Circuit Court of Appeals is most welcomed. It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department. In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy.

Alexander Nicholson, executive director of Servicemembers United:

With the wait for certification dragging out beyond a reasonable time frame, the Court has once again stepped in to require the Pentagon to stop enforcing ‘Don’t Ask, Don’t Tell,’ and this time it very well may be for good… Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law.

Joe Solmonese, president of the Human Rights Campaign:

Today’s decision is a harbinger that ‘Don’t Ask, Don’t Tell’ is on its way out.  With troops trained on the new policy and senior military leaders having said the process is working without significant disruption, DADT is on its last legs.  The time for certification is now in order to clearly and plainly wipe this damaging law off the books once and for all.


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