Judge Alex Kozinski
As
FogCityJohn has already noted, the United States Court of Appeals for the Ninth Circuit has lifted the stay barring enforcement of
Judge Virginia Phillips' order barring enforcement of the military's Don't Ask Don't Tell policy.
As you may recall, on November 1, 2010, a different panel of the Ninth Circuit granted the request for a stay, citing the presumptive constitutionality of all legislation (and repeated court findings that DADT was constitutional) and the need for judicial deference to Congress on military affairs. But today's ruling, by Judges Alex Kozinski (Reagan appointee), Kim McClane Wardlaw (Clinton), and Richard Paez (Clinton), found that things have changed too much to keep that stay in place based on the four traditional factors:
- whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
- whether the applicant will be irreparably injured absent a stay;
- whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
- where the public interest lies.
The Court order states:
In their briefs, [the Government does] not contend that 10 U.S.C. § 654 is constitutional. In addition, in 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”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.
Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed.
It's true: the goverment's arguments in favor of keeping the stay rested on grounds
other than whether DADT itself was constitutional. Instead, they argued, that the plaintiff Log Cabin Republicans lacked standing to bring this suit; that DADT was constitutional
given the passage of the Repeal Act "and pending completion of the orderly process required for repeal to become effective"; and that the district court lacked authority to enter a worldwide injunction.
That worldwide injunction, however, is for the moment the law of the land, and it does as follows:
(1) DECLARES that the act known as "Don't Ask, Don't Tell" infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment
Beyond the Ninth Circuit itself, which I suppose could meet
en banc to review the lifting of the stay, an immediate appeal to the Supreme Court would go to Justice Kennedy.