Late this afternoon, Judge Virginia finalized her rejection of the government's request for a stay of her cease and desist order to the US military over it's Don't Ask, Don't Tell policy.
Noting that "the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops" Phillips rejected the government's emergency stay request.
Don't Ask, Don't has not been the law of the land now for seven days.
The matter of a stay will now go to the Ninth Circuit Court of Appeals which is expected to issue at least an emergency stay, probably sometime tomorrow. (If, by some chance, the Ninth Circuit refused to issue any kind of stay things would get very interesting very quickly, with possible intervention by the Supreme Court in the auspices of Justice Kennedy. Were that we lived in such interesting times...)
Regardless, The Ninth Circuit has already set up a partial schedule for the appeals process itself.
Ninth Circuit Timeline:
- January 24, 2011 Government's deadline to file Ninth Circuit appeal brief
- February 22, 2011 Plaintiffs' deadline to file a response to Government's brief
- March 8, 2011 Government's deadline to respond to plaintiff's response
There is no mention of when oral arguments would be heard.
... the government will have seven weeks after the Dec. 1 report is due from the Pentagon working group reviewing DADT repeal implementation before it needs to file any substantive response to Phillips's September decision declaring DADT unconstitutional. What's more, this deadline falls well after the end of the "lame-duck" session of the 111th Congress, when legislative repeal of 10 U.S.C. 654 -- the DADT law -- could be finalized. This schedule, in other words, gives the Obama administration the room to end DADT before needing to defend DADT on appeal.
Of course it is quite possible that a) the government report will recommend a painfully slow process and timeline for full or even partial repeal and/or b) Congress will not pass the repeal bill.
In the latter case it is hard to see the court dismissing the appeal, even if the government report were to recommend full and speedy repeal.
If Congress does pass the repeal legislation, and the government report does, in some fashion or another, present a timeline for implementation of repeal, and the President, Secretary Gates and Admiral Mullen in fact certify its findings as they are required to do for the DADT law to vanish, it is not clear what the Court would do. Unless the government were to agree to stop conducting investigations and discharging members, such soldiers' constitutional rights would still, in theory, be being violated.
What will it feel like to be the last person discharged because of Don't Ask, Don't Tell ?
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Update: Some Quotes From Judge Phillips Denial.
Further, the statements in the Stanley Declaration are vague, and belied by the evidence at trial that Defendants chose not to rebut. For example, the evidence presented by Plaintiff regarding housing and the negative effect the Don't Ask, Don't Tell Act had on military readiness and unit cohesion. So, to the extent Defendants now argue that stopping discharge under the Act will harm military readiness and unit
cohesion, they had the chance to introduce evidence to that effect at trial. Defendants did not do so. The evidence they belatedly present now does not meet their burden to obtain a stay.
Turning to the first factor identified in Nken, Defendants have not demonstrated a "likelihood" of success on the merits nor have they made a showing that their appeal presents a "serious legal question."
Ouch!
Defendants have not shown, however, a likelihood they will suffer irreparable harm. As noted above, the injunction requires Defendants to cease investigating and discharging servicemembers pursuant to the Act. It does not affect Defendants' ability to revise their policies and regulations nor to develop training and education programs, the only activities specifically mentioned in the Stanley Declaration. Furthermore, Defendants merely conclude, without explanation, that
"confusion and uncertainty" will result if the injunction remains in place. Thus, Defendants have failed to establish they are likely to suffer irreparable injury if a stay is not granted.
Plaintiff established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental
rights, and there is no adequate remedy at law to prevent the continued violation of those rights... As a stay would force Defendants to continue violating servicemembers' constitutional rights, the third factor strongly weighs against granting a stay.
... the evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights. The evidence Defendants submitted with this Application has not demonstrated otherwise. Thus, Defendants have not met their burden in showing the public interest here lies in issuing a stay.
Accordingly, the Court DENIES Defendants' Application for a Stay.
IT IS SO ORDERED.
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Full timeline for Log Cabin Republicans v. United States of America:
Timeline:
- 2004: Lawsuit is filed.
- 2005: Judge presiding over case falls ill. Case is repeatedly delayed until Judge Phillips is assigned to take over in 2009
- July 13, 2010: Trial begins.
- July 23, 2010: Closing arguments are heard.
- September 9, 2010: Judge Philips issues ruling. DADT is unconstitutional on its face
- September 16, 2010: As per judge's instructions, plaintiffs submit proposed remedy: an order for the Pentagon to stop enforcing Don't Ask, Don't Tell nationwide.
- September 23, 2010: Government responds to plaintiffs' proposal with alternative, extremely limited scope proposal.
- October 12, 2010 Judge Philips orders DoD to cease and desist enforcing DADT
- October 14, 2010 Government complies with cease and desist order, asks for emergency stay to allow appeal to Ninth Circuit
- October 18, 2010 Phillips tentatively denies motion for emergency stay
- October 19, 2010 Phillips officially denies motion for emergency stay
- January 24, 2011 Government's deadline to file Ninth Circuit appeal brief
- February 22, 2011 Plaintiffs' deadline to file response to Government's brief
- March 8, 2011 Government's deadline to respond to plaintiff's response