BREAKING: 9th Circuit Kills DADT (Again)

Wow! A (admittedly decidedly liberal) 3-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously lifted a stay against the U.S. Government from enforcing "Don't Ask, Don't Tell" in the case Log Cabin Republicans v. United States.

Here's the text of the order filed today:

Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do 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.

And here's Legal Eagle Chris Geidner explaining what it means:

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit of the U.S. Supreme Court pending an appeal of today's decision.

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 three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- based the decision to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCRcase is based, the judges write, because, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the citations by the court is the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

You will recal DADT was also not in effect worldwide or 8 days last fall when the Log Cabin Republicans first won an injunction against the government from federal judge Virginia Phillips. Now they have won at the appellate level as well on the question of the stay. The oral arguments about the merits of the case will be heard on August 29th. The government can ask for an en banc panel (11-judge panel) of the 9th Circuit or ask the US Supreme Court for a stay on the latest injunction against the enforcement of DADT..

It will be interesting to see what they do because the statute in question should be moot in a few weeks anyway when the DAT repeal is certified. However, there are some questions about whether sexual orientation will be a category of non-discrimination (which the lawsuit asks for but the legislation does not contain) and also whether the Uniform Code of Military Justice will include consensual sodomy (there is legislation in this year's Defense Authorization bill to repeal the UCMJ sodomy language).