In a 2-1 decision announced this afternoon (read it here), the United States Court of Appeals for the Ninth Circuit has granted the United States Government's request for a stay of U.S. District Judge Virginia Phillips' October 12 order barring the enforcement worldwide of the discriminatory Don't Ask, Don't Tell policy. In other words, for the time being the Government can resume its enforcement of DADT if it so chooses.
The ruling is based on multiple findings by the Court:
- Acts of Congress are presumptively constitutional, so ties go to the government when it comes to requests for stay pending appeal.
- When it comes to the constitutional power of Congress to "raise and support armies," judicial deference is at its highest.
- The First, Second, Fourth and Eighth Circuits had all found DADT constitutional (in 2008, 1998, 1996 and 1996, respectively), and it's inappropriate for this Circuit to grant an order that interferes with their prior rulings.
Summing up the merits, the Court writes:
[W]e conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military–if that is what is to happen–strongly militates in favor of a stay.... Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot.
In dissent, Clinton appointee Judge Fletcher regrets that there was no oral arugment on the stay, and says that he'd rather have kept the say with one big exception:
I would stay the district court’s order in all respects except one: I would allow the district court’s order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal. Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices. If the hardship that would be imposed on plaintiffs by actual discharge is removed, the balance of hardships would tip sharply in favor of the Defendants.
This argument did not persuade Judges O'CScannlain and Trott, who responded:
In our view, this “carve out” is inconsistent with the stay itself and would be subject to the vagaries of the rule of unintended consequences. It could have the unfortunate effect of encouraging violations of § 654 in the interim, which, if the statute were ultimately to be found valid (an issue on which we express no opinion), would leave the persons involved in a precarious position, because even Appellees admit that the government could resume discharges if the district court judgment is reversed.
Briefing on the merits now proceeds before the 9th Circuit; in the meantime, it's up to the Commander-in-Chief to decide if he wants to keep discharging men and women from our Armed Forces just because someone finds out they're gay.