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BREAKING: 9th Circuit grants DADT stay of injunction

DADT trial

By Eden James

Chris Geidner has the details at Metro Weekly:

With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of the military’s “Don’t Ask, Don’t Tell” policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government’s appeal of Log Cabin Republicans v. United States.

“In addition to the fact that this case raises ‘serious legal questions,'” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”

The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”

Read the rest to see what dissenting Judge William Fletcher wrote.

According to Geidner, it appears the briefing will not be complete until March 2011. An oral argument likely will be scheduled thereafter.

Scribd doc from the always-on-top-of-it Kathleen:

[scribd id=40661033 key=key-2cx8awgojv1zkuxz6lje mode=list]


Dan Woods, White & Case:

“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the US Supreme Court.”

R. Clarke Cooper, Executive Director, Log Cabin Republicans:

“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”

HRC, from Joe Solmonese:

“Every day that ‘Don’t Ask, Don’t Tell’ is in force, Americans are losing out on the best and brightest service members defending our country. For the good of our national security, the endless legal wrangling and political posturing has to stop. This is the year for the President to lead and for Congress to clean up the mess it made when it enacted this discriminatory and unconstitutional law nearly two decades ago.”

UPDATE: Karen Ocamb has a few more statements:

Servicemembers Legal Defense Network Executive Director Aubrey Sarvis:

“Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame duck session to end this confusion and bring about the finality that is needed. We continue to warn service members that it is unsafe to come out as long as this law remains on the books.”

Lambda Legal wrote an amicus brief in the case. Staff Attorney Peter Renn said:

“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate. But it’s important to remember what today’s ruling was not: a consideration of the merits of the case. That remains for another day.

Each day that ‘Don’t Ask, Don’t Tell’ remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the President, who can issue a stop-loss order to put an immediate end to discharges under ‘Don’t Ask, Don’t Tell.’”

UPDATE: Alexander Nicholson, Executive Director of Servicemembers United:

“It is really unfortunate that the government has tricked the Ninth Circuit into believing that ‘enormous consequences,’ ‘immediate harm,’ and ‘irreparable injury’ will result from a continuation of the injunction,” said Alexander Nicholson, Executive Director of Servicemembers United and the only named veteran plaintiff in the case. “By the government’s own admission elsewhere, none of these predicted consequences or injuries have come to pass while the law has been enjoined, and the Defense Department has even voluntarily created a de facto moratorium on discharges by further increasing the level of discharge authority. It is concerning that the government can so blatantly pull one over on an appeals court, and it is equally frustrating that such a distinguished court would allow itself to be fooled so obviously and so publicly in the name of ‘deference.’ Abdication is more like it.”

“In light of this stalling of justice, the very narrow legislative path remains the only way by which the President, administration officials, and the congressional leadership can keep their promise to end “Don’t Ask, Don’t Tell” this year. In order for there to be any chance for legislative success, Senate Majority Leader Harry Reid absolutely must bring the National Defense Authorization Act back up on the Senate floor before the Senate recesses for Thanksgiving.”

In a video released online late last week, Servicemembers United’s Executive Director explained SU’s take on the very narrow path available to achieve a legislative victory on “Don’t Ask, Don’t Tell” by the end of the year:


  • 1. Alan E.  |  November 1, 2010 at 8:51 am

    Non entirely unexpected, but I surely hope the court doesn't fall to the government's feet so easily during the actual argument stage.

  • 2. Gregory in Salt Lake  |  November 1, 2010 at 8:52 am

    Thanks Kathleen :)


  • 3. Ronnie  |  November 1, 2010 at 8:56 am

    The government thinks those in our armed forces are complete idiots who need training on how to not discharge someone because that person is Gay…like I said really is this simple…just don't do it….so easy a monkey can do it… : / …..Ronnie

  • 4. Alan E.  |  November 1, 2010 at 8:59 am

    In better news, check out this article about the first NCAA publicly transgender basketball player.

  • 5. Rhie  |  November 1, 2010 at 9:10 am

    I am so very confused and I wonder if the US Military feels the same way.

  • 6. Lightning Baltimore  |  November 1, 2010 at 9:11 am

    Wait a minute . . .

    Acts of Congress are presumptively constitutional

    Excuse me? Then why the Hell do we have a Constitution in the first place? If Congress can just piss all over it, it's a worthless document.

    I am not a happy camper.

  • 7. Alan E.  |  November 1, 2010 at 9:13 am

    Every law is technically Constitutional until a court says otherwise. In that case, it was then unconstitutional from the very beginning. Almost a Catch-22 scenario.

  • 8. Steve  |  November 1, 2010 at 9:15 am

    Courts are always moving so slow it's ridiculous. It shouldn't take 4-6 months to resolve this.

  • 9. Kathleen  |  November 1, 2010 at 9:17 am

    It's a presumption with the burden on the plaintiffs to prove otherwise. This is no different than someone who is charged with a crime is presumed innocent and the burden is on the prosecution to prove guilt.

  • 10. Billy  |  November 1, 2010 at 9:20 am

    This is repulsive. Apparently, opinion and conjecture trump facts in a court of law. I'm beginning to wonder if we'll see full rights in my lifetime… and I'm 28.

  • 11. Kathleen  |  November 1, 2010 at 9:21 am

    You do understand that this is not an opinion on the merits, right? This is just a stay of the injunction while the 0th Circuit hears the appeal. As disappointing as this is, I admit it's not unexpected.

  • 12. Gregory in Salt Lake  |  November 1, 2010 at 9:21 am

    I agree "better news"…I read the extended version of this article. I LOVE hearing these kinds of stories…especially the coaches acceptance. Thanks Alan : )

  • 13. Kathleen  |  November 1, 2010 at 9:26 am

    That should read the "9th Circuit" – but I'm guessing people knew that. :)

  • 14. DrPatrick1  |  November 1, 2010 at 9:26 am

    Just to clarify, it was, indeed, a 2-1 decision. HOWEVER, the dissenting judge only would have banned discharges (no small thing). He would have stayed the the injunction on Recruitment (new recruits would be banned if out, and would be told such) and investigations would be allowed to proceed.

    As for the Sports story from Alan E. UMMMM I'm not sure he should be playing on the women's team. My partner is FTM (as some of you may be aware from previous comments) so my comment here is somewhat informed. I don't hope to understand what it means to be transgendered. I have no understanding what must go on in a person for them to know something like that. BUT, just because I don't understand why someone is transgendered, doesn't mean I don't understand that they are, indeed, transgendered. BUT, why is a man playing on the women's team? I really feel for schools who are dealing with these issues. I don't know if there is a correct, or right answer. I mean, wouldn't some complain about a MTF woman playing on the women's team? I think we need to think about such scenarios and create clear rules so that schools aren't left making their own rules (often at the detriment to the trans community). In the end, I'm all for more visibility, and I hope he has a successful career. Cheers-

  • 15. Billy  |  November 1, 2010 at 9:27 am

    Yeah, I know… just lashing out.

    So how does this affect the armed services recruitment of openly gay service members? Are they not taking openly gay people now, or what?

  • 16. Steve  |  November 1, 2010 at 9:27 am

    The really troublesome idea is that it is presumed that the legislature is somehow more knowledgeable in military matters and is given almost a free pass in that area. They are saying "the normal rules don't apply to the military".

  • 17. Kate  |  November 1, 2010 at 9:29 am

    Lately it's been feeling like it's the 0th Circuit, though….

  • 18. Kathleen  |  November 1, 2010 at 9:30 am

    “the normal rules don’t apply to the military”

    This has always been true.

  • 19. Kathleen  |  November 1, 2010 at 9:32 am

    No, they're not. Actually, the injunction was only in place for about a week. The 9th Circuit had already granted a temporary stay on Oct 20, while they made a decision about this stay pending appeal.

  • 20. Sagesse  |  November 1, 2010 at 9:35 am

    Can't say I'm wild about their reasoning, but the stay is not a surprise.

  • 21. Straight Ally #3008  |  November 1, 2010 at 9:45 am

    For what it's worth, I apologize to my LGBT brothers and sisters for this continuing nonsensical bullsh-t by uptight, small-minded, insecure straight people.

  • 22. Kate  |  November 1, 2010 at 9:49 am

    It's not your fault, SA #3008! You're not responsible for them just 'cuz they're straight, too. We're just glad you're here with us.

  • 23. Jonathan H  |  November 1, 2010 at 10:21 am

    “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies”

    So what they're saying here is that when it involves Congress and the military, that's when judicial deference is farthest away from Earth?

    I guess I can't really argue…

  • 24. Sagesse  |  November 1, 2010 at 10:25 am

    By the way, is there really such a thing as the 'rule of unintended consequences'? Legally?

  • 25. Anthony  |  November 1, 2010 at 10:32 am

    Read the rest of the article. It addresses the rules. His educational scholarship is involved and the rules are clear about drug use.

  • 26. JonT  |  November 1, 2010 at 10:32 am

  • 27. Bob  |  November 1, 2010 at 11:02 am

    @Straight Ally #3008 thanks , I also want to apologize for those uptight, small-minded , insecure straight people, as a Canadian, neighbour, I want equality for the Rainbow Tribe, now, expecially in America.

    Wow have we been asleep at the wheel to allow such small mindedness to flourish and bloom in our own backyard., like a weed, it needs to be eradicated, and especially prevented from crossing borders.

    The global effort could be channeled to expanding minds, small minds are a global threat.

  • 28. Michael Ejercito  |  November 1, 2010 at 11:03 am

    A key quote from the decision.

    Although our respected colleague in dissent agrees generally with the gist of
    our decision to grant this stay, he would allow the district court’s permanent
    injunction to remain in effect with respect only to the military’s authority to
    discharge any member who violates the “Don’t Ask, Don’t Tell” policy while the
    issues remain on appeal. 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
    , 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.

  • 29. Michael Ejercito  |  November 1, 2010 at 11:05 am

    It was quoted in several decisions, including Rostker v. Goldberg .

  • 30. Straight Ally #3008  |  November 1, 2010 at 11:22 am

    I'm sure it's virtually unnecessary with this crowd, but…

    Get out and VOTE TOMORROW!

  • 31. Jonathan H  |  November 1, 2010 at 11:32 am

    What was quoted in several decisions?

  • 32. Lightning Baltimore  |  November 1, 2010 at 11:47 am

    "I'm Gonna Wash That Man Right Outta My Hair" from South Pacific

  • 33. Richard A. Walter (s  |  November 1, 2010 at 11:52 am

    I guess our courts are now deciding that they will cater to the whims of those who wish to turn this country into the Republic of Gilead, rather than relying upon the facts and the evidence. So I guess Canada is quickly becoming the only option for those of us who want to live our lives without undue intrusion from the radical pseudo-religious folks who are taking over our government. And it is becoming obvious that we cannot rely upon our "fierce advocate" in the White House for anything other than lip service to actual change in this country.

  • 34. Jonathan H  |  November 1, 2010 at 11:53 am

    Outta your hair? Kinky!

  • 35. Jeremy  |  November 1, 2010 at 12:01 pm


    I am the same Jeremy that occasionally posts at Volokh Conspiracy. While I normally disagree with you vigorously, I have to concede the point here– the panel was probably correct in their judgement granting the stay. It would be wrong to place LGB servicemembers in a position where they could face a mass purge, if there is even a chance DADT could be upheld by SCOTUS,

    I guess we Gays have to hope we succeed in the lame-duck session. In following recent news, I am starting to feel better about the military's role in this issue. While many, many gay liberals are convinced the military despises Gays and wants to oppose Obama at any cost, my sense of the situation is that most of the Military leaders actually do want to get rid of DADT (they know that many gays serve already, and in many units serve openly), but do not want it to look as if their cultural autonomy is being disregarded or subjected to political games.

    Having said that, if legislative repeal fails, then full steam ahead with the court case. This is the last generations of Gays that will allow Straights to determine what rights we will have. We will be equal, one way or the other. We will stand for nothing else.

  • 36. Jonathan H  |  November 1, 2010 at 12:11 pm

    Courage, Richard! This is a small pause, a tiny thing, not even a setback. On the whole it's getting better, every day just a little better.

    Once people stop giving in to xenophobia, once they see people, however different or weird or even scary, they do what's right. It's only dehumanization and fear that's making this take so long, and in this interconnected world that cannot last.

    There's a better world coming, I promise you. We're making it a little bit at a time, every day. Don't despair.

  • 37. Ronnie  |  November 1, 2010 at 12:23 pm

    The homophobic Fascist Ingrate, Michael Ejerkcito, returns…hiss hiss…..the non lawyer who doesn't understand a damn thing he c&p's because he is a benighted troglodyte who should stick to selling houses….instead of being a nasty troll who never answers a god-damn question….. >( ….Ronnie

  • 38. Ronnie  |  November 1, 2010 at 12:25 pm

    "Goooooldbeeeeeeerg???????!!!!!!"….. ; ) …Ronnie

  • 39. DrPatrick1  |  November 1, 2010 at 12:43 pm

    @Anthony- So I took you up on it,and finished reading the full article. And I stand by my previous comment. The NCAA is telling him that they will continue to treat him as Female. Sure he wants to play on the team, but to do so, he has to play as a female. He can use male pronouns, use a separate lockerroom, but he is still a female in the eyes of NCAA. I'm sorry, but as the partner of a transguy, that isn't quite kosher for me. Kye seems to be doing the very best thing he can do, and I don't begrudge him for his choices (staying on the Women's team and delaying his medication until he's done with his obligation for his scholarship). BUT, the NCAA is forcing him to delay transition, to delay his medication (T) so he can still play with the women. JUST as I wish all gay kids should come out, as the closet is no place for anyone, especially a young person, I won't begrudge them from doing it at their pace. Most gay kids consider their parents financing of their education as part of the decision of when to come out. My comment wasn't meant to address what Kye should do (he sounds wonderful from the article, and seems to have thought long and hard about everything). I don't mean to speak for anyone. I simply meant that rules should exist to allow people in Kye's shoes to live their lives to the fullest extent possible. I suppose in one way they do. He can transition now, and try out for the men's team, or he can delay transition, and continue his scholarship. It just seems to me that this is perhaps not a perfect answer (though as I previously stated, I'm not sure there is one perfect answer), though admittedly, I can't think of a better solution… In any case, Cheers to Kye, and others who find themselves battling this issue.

  • 40. Kathleen  |  November 1, 2010 at 12:53 pm

    UPDATE (in Perry)

    Proponents' Reply Brief

  • 41. Kathleen  |  November 1, 2010 at 12:54 pm

    With Motion to file oversized brief

  • 42. celdd  |  November 1, 2010 at 1:17 pm

    Thanks Kathleen!

  • 43. NetAmigo  |  November 1, 2010 at 1:20 pm

    Briefly looking at the Proponent's Reply Brief, it is similar to their other filings. What strikes me is that Proponents in court put on a very weak case. But in these briefs outside of court, they put on quite a show. It is as if they want to argue their case outside of court. It seems to be a strategic plan of theirs to avoid putting on a case in court. I think they want to avoid the Plaintiff's counsel head on as would be required in court.

  • 44. Sagesse  |  November 1, 2010 at 1:24 pm

    Won't get to read this tonight, but just a few pages in, it's starting to read like a skit from Saturday Night Live:

    "Nor, finally, can Plaintiffs’ claim stand up to this simple truth: Every one of us, including the Members of this Court, is close to someone who opposes redefining marriage to include same-sex couples—they are our family members,
    our friends, our colleagues, our co-workers, and for some of us, ourselves. Are they (we) all either bigoted or benighted?"

  • 45. Kathleen  |  November 1, 2010 at 1:26 pm


  • 46. Ann S.  |  November 1, 2010 at 1:37 pm

  • 47. Elizabeth Oakes  |  November 1, 2010 at 1:45 pm

    My guess is our "fierce advocate" is playing the waiting game until after tomorrow, not wanting to give the GOP any more ammunition by taking a strong progressive and proactive position on DADT. We'll see if the rhetoric changes after the election…but if the balance of the legislature changes a repeal bill may not succeed, even in a lame duck session. Sigh.

  • 48. Elizabeth Oakes  |  November 1, 2010 at 1:53 pm

    Oh no no no no no! We never said they were all bigoted or benighted! For example, we know for a fact that some of them are just extremely greedy and corrupt, others stupid, many parroters who want to belong but don't want to think actual thoughts of their own, others bullies by nature, and others are struggling to suppress their own non-heterosexual impulses by gaybashing others. So see? There's a whole panoply of homophobe proponents who aren't bigots or benighted! What other purported "arguments" you got, kids?

  • 49. Lightning Baltimore  |  November 1, 2010 at 2:31 pm

    Co-opting us again, eh?

    “Nor, finally, can Plaintiffs’ Defendents' claim stand up to this simple truth: Every one of us, including the Members of this Court, is close to someone who opposes redefining marriage to include same-sex couples is gay, lesbian or bisexual—they are our family members, our friends, our colleagues, our co-workers, and for some of us, ourselves. Are they (we) all either bigoted or benighted undeserving of equal rights?”

  • 50. Santa Barbara Mom  |  November 1, 2010 at 2:44 pm


  • 51. draNgNon  |  November 1, 2010 at 2:51 pm

    this might be the right crowd to point out that Iowa isn't the only state with judicial retention elections coming up. California is as well.

    I'm looking at this stubbed site and the California appeals justices often have stubs. I bet there are some folks who read this site regularly who have the info to fill in some of the stubs, especially for the Appeals Court justices.

    that is all, carry on, and remember to vote. <partisan statement> neither DOMA nor DADT is going to be repealed by a Republican Congress, let me tell you that, no matter how many LCR or GOProud members tell you otherwise. &;lt/partisan statement>

  • 52. Cat  |  November 1, 2010 at 3:25 pm

    Wow. A mere 5 lines into the brief, there it is: channeling. I think the reasons why that is no argument against marriage equality has been made abundantly clear.

    But even worse, on the second page they state: Plaintiffs’ genderless, adult-centered understanding of the social meaning and purposes of marriage is a recent academic invention. That really pisses me off. This one sentence already contains several of the fear mongering myths that were dispelled during the trial. Their choice of words is pretty offensive and hardly hides their scare tactics.

    I think I'm done reading… Let's hope the judges have a stronger stomach and know baseless sh*t when they read it.

  • 53. Rhie  |  November 1, 2010 at 3:28 pm

    And, as frustrating it is, I think that is the way a free society should be.

  • 54. Bill  |  November 1, 2010 at 3:28 pm

    I'd agree. There seem to be only two reasons the proponents would put on such a weak case at the District level: (1) they had no other choice, because they knew that they had no credible evidence to present, and/or (2) they strategically decided to roll over at the District level and wait to present their strongest arguments on appeal, based on trying to poke holes in the plaintiff's' case and the District judge's ruling. Both of these reasons may be correct, or the second one might have emerged from the experience of the trial.

    The proponents have a highly skilled legal team. They seem to have done a thorough job of responding to the plaintiffs' arguments and case citations. They have presented a clear (though, how compelling I am uncertain) case for standing (I do think that the argument for the standing of Imperial County reads like an afterthought, however). And, here is the basic argument they are advancing on the merits, from my quick reading:

    1. The District Court erred in allowing for a strict scrutiny standard of review; while there has been a history of discrimination against gay men and lesbians this group presently has sufficient power to enact a legislative agenda to protect itself. Therefore, a rational basis standard is appropriate for the Court's review.

    2. The voters had a rational basis for enacting Proposition 8. They were concerned about shifting the traditional definition of marriage simply because a court ruled that such a shift was consistent with constitutional protections in California. Voters wanted to send a message that Californians were not yet ready to support same-sex marriage, especially when the domestic partnership option was available to same-sex couples. This attitude has been prevalent in a number of states (c.f., the amicus brief from several of those states). It may well change over time, but it was an attitude held even by President Obama. The evidence submitted by the plaintiffs has enough holes in it to question whether the District Court should have made such a sweeping ruling.

    3. There is some question whether the plaintiffs have standing to appeal, as they do not represent a class of individuals and have not shown to be harmed directly by a potential reversal of the District Court's decision. (I am a little foggy on the reasoning here, but the brief contains some case law to support such a claim.)

    4. Proposition 8 was decided in a rational manner, although the campaign was hard fought and there were extreme statements made on both sides. Clearly there was some hatred toward gay men and lesbians expressed during the campaign (c.f., the Tam testimony, whose views the brief acknowledges were hateful) but these statements were made by individuals who had little influence on the outcome of the election.

    5. Because there is a rational basis for the enactment and existence of Proposition 8, the court should overturn the District ruling.

    Now, I should be quick to point out that I personally disagree with this argument. But, it's certainly plausible and not a weak position. I'd say that our side has its work cut out for it. Fortunately, we do seem to have an outstanding legal team working for us.

    Bill in San Diego, mostly a lurker

  • 55. Rhie  |  November 1, 2010 at 3:37 pm

    I wouldn't mind if an MTF was on my team. I understand that some people's knee-jerk is discomfort but I don't think that ever should determine a policy. I think the onus is on the person who is uncomfortable to figure out why, and address it to themselves so they can treat another person fairly. I wouldn't automatically call that person out as a bigot; rather I would assume they didn't know that sex and gender are different things, and that gender, sex and orientation aren't binary.

    As I am sure you know, sex is what's between the legs. Gender is what the individual knows that they are as person. So, an MTF is a woman, with a man's sexual parts, but still a woman. It's how you can have pregnant FTM men. They have woman's womb, but are a man gender-wise.

    So, an MTF isn't a man on a woman's team. It's a woman in a male body on a woman's team.

    It became easier for me to at least intellectually understand when I stopped thinking of sex and gender and orientation as binary or set. I could never, ever presume to say that I understand what I feels like.

  • 56. Rhie  |  November 1, 2010 at 3:41 pm

    Teach me to comment before I finish reading the article and the comments. Oops. I thought you were saying the opposite of what you seem to be saying. Disregard if you want, or answer. I am going to leave it though, since I did make the mistake and stand by it. My apologies.

  • 57. Kathleen  |  November 1, 2010 at 3:47 pm

    Here’s the scheduling order for the appeal:

  • 58. Phil L  |  November 1, 2010 at 3:58 pm

    They also resort to mentioning that same sex unions aren't mentioned in any dictionary in conjunction with the word marriage. This is a blatantly false statement as many dictionaries have altered the definition years ago to include same sex unions.

  • 59. Jonathan H  |  November 1, 2010 at 4:21 pm

    Bill does that really strike you as a strong argument? It seems to me to boil down to "voters said so". I am not a lawyer and know little of the law, but I think I could argue this down just operating on logical and ethical grounds.

    I also take serious exception to your point #2, as concern over shifting tradition is not a rational basis to enact any legislation which so much as looks at someone's rights. (Frankly, I wouldn't accept that for anything stronger than how to decorate the capitol.) When you've got "Eliminates the right" on a ballot you'd better have something stronger than tradition backing it up.

    Does it actually say "Voters wanted to send a message"? I was one of those voters, and if they're pretending to speak for me I'd like to sue them for libel.

  • 60. Kathleen  |  November 1, 2010 at 4:25 pm

    UPDATE (Perry)

    Imperial County filed Reply Brief:

  • 61. Kathleen  |  November 1, 2010 at 4:26 pm

    with motion to file oversized brief:

  • 62. A A  |  November 1, 2010 at 4:31 pm

    All this 9th Circuit Court ruling, the Judge Virginia Phillips Constitutional assessment, and the litigations leading up to these circumstances pose this provocative question: Why would any self-respecting and progressive thinking Gay man or woman, knowing full well the military regulation and restrictions about "Don't Ask, Don't Tell," voluntarily join the military and subject oneself to such dehumanizing conditions in the first damned place? All Gay men and women are totally deserving of equal rights as any other American citizen. However, up against entrenched and embedded religious attitudes of society even amongst our supposed "progressive members," including Court Judges, military brass and personnel, bigoted and prejudiced personal relatives,co-workers, and absolute strangers, it will take something of a miraculous change in society before any one of us will see the light of day. The simple fact remains, that even with all the advancements that mankind has accomplished, there is much that is wanting in peoples' educations…..We are not a society that is as enlightened as it should be. As Carl Sagan said it best, "If it were not for Chrisitanity, mankind would be 2000 years ahead in progress from where it stands today. The longer I live, it appears to me that we as a species are falling behind, rather than moving forward.

  • 63. Lightning Baltimore  |  November 1, 2010 at 7:07 pm

    1. The District Court erred in allowing for a strict scrutiny standard of review; while there has been a history of discrimination against gay men and lesbians this group presently has sufficient power to enact a legislative agenda to protect itself. Therefore, a rational basis standard is appropriate for the Court’s review.

    I think this point is highly debatable, from our side.

    ENDA has been languishing in Congress since, what, 1994? We don't have the legislative power to get it passed.

    DADT is still the law of the land since 1993, and that was just new wording for laws already in place. Seeing as it's already November, I sincerely doubt it will be overturned by the end of this year, especially if the GOP/Tea Party gain enough seats in the legislature, as it's highly unlikely any of them would vote to repeal it.

    The first attempt at same-gender marriage in the USA was in 1972. 38 years later, only five states allow it and the majority have amended their state constitutions to prevent it; some even going as far to deny piddly little "marriage lite: civil unions.

    If we had "sufficient power to enact a legislative agenda to protect [ourselves]," none of these would be an issue.

    What have we to protect ourselves? Non-transferrable marriage in only one out of every ten states (and no marriage recognition at the Federal level), inclusion (finally) in Federal hate crime legislation, and the right to visit each other in the hospital, as of only this year.

    We also have the right to have wills and other legal documents drawn up, only to have them often ignored or overruled.

  • 64. Jim  |  November 2, 2010 at 12:18 am

    The two Appeals Court judges who ruled against us were appointed by Reagan. The one Appeals Court judge who ruled for us, arguing that DADT firings must stop during the appeal, was appointed by Clinton.

    Elections matter. Republican control of the Senate, and of the Senate Judiciary Committee, would be a disaster for our community.

    If Republicans win today in California and Washington state, Republicans could control the Senate. (Vote!)

  • 65. Rebecca in Chicago  |  November 2, 2010 at 12:20 am

    I agree with you to an extent, DrPatrick1. It's not fair to Kye that he has to delay his transition to keep his scholarship. It really takes his choice in the matter away.

    I think the issue would be very different if the medication to transition (testosterone) wasn't also a performance-enhancing drug. I think that's the only thing keeping him from transitioning now.

    That way, nobody at other schools or on other teams can complain that he's playing on the women's team. He is a man, but biologically, he is female and can therefore compete on a level playing field with other biological females.

  • 66. Sagesse  |  November 2, 2010 at 12:24 am

    If Republicans control the Senate, they also control the Senate Armed Services Committee, giving John McCain his fondest wish, to chair the Armed Services Committee.

    Definitely VOTE!

  • 67. Richard A. Walter (s  |  November 2, 2010 at 12:31 am

    Yes, please VOTE!!!!! The importance of voting cannot be stressed enough. Either we get out and vote, or we have Carly "What did I do to HP/Compaq?" Fiorina and NutMeg Whitman gaining control of California, along with Steve Cooley, not to mention Christine "I am NOT a Witch" O'Donnell (And I know that my Wiccan friends are GLAD Christine O'Donnell is not asking for affiliation with them) in New Jersey. We have got to prevent this country from being turned into a theocracy, and the only way we can do that is to get out and vote!

  • 68. Alan E.  |  November 2, 2010 at 1:02 am

       /ˈbɪgət/ [big-uht]
    a person who is utterly intolerant of any differing creed, belief, or opinion.

    Especially people who hold to their opinion even in the face of mountains of evidence to the contrary.

       /bɪˈnaɪtɪd/ [bih-nahy-tid]
    intellectually or morally ignorant; unenlightened: benighted

    If you run smear and fear campaigns that deliberately give out false information, then yes, people will become bigoted and benighted, but not 100% their doing.

  • 69. Alan E.  |  November 2, 2010 at 1:06 am

    Strict Scrutiny wasn't applied in the decision. Walker said that if it had passed rational scrutiny, strict scrutiny would be applied, but the case for rational scrutiny wasn't even there.

  • 70. Freddy  |  November 2, 2010 at 1:18 am

    I don't if this really means anything or not but when reading the schedule I noticed something,

    The optional appellants' reply brief shall be filed and served within fourteen
    days of service of the appellee's brief, pursuant to FRAP 32 and 9th Cir. R.
    Failure of the appellants to comply with the Time Schedule Order will result
    in automatic dismissal of the appeal. See 9th Cir. R. 42-1.
    More specifically the last part, so if the Senate failed to get this processed, could Obama direct the DOJ not to file the appeal brief when he realizes that he has lost control of the Congress?

  • 71. Kathleen  |  November 2, 2010 at 2:01 am

    IIRC, Walker held that marriage was a fundamental right and applied strict scrutiny to the due process claim. Under the equal protection analysis, he said that g&l are the type of class that qualify for strict scrutiny, but ruled that it wasn't necessary, as Prop 8 failed even under a rational basis test.

  • 72. Gregory in Salt Lake  |  November 2, 2010 at 2:46 am

    That sums it up for me too Rhie. I marvel as Kathleen, Alan and others dissect and discuss the various aspects of the DADT saga. I do appreciate the "Path Forward" video including in this post……I watched it a few days ago when Sagesse or Felix posted it. I found the complicated "possible path" explained well.

    I appreciate for the opportunity to read all these briefs and learn from the discussions. The legal realm is something I have no experience with and I find it fascinating.

  • 73. Alan E.  |  November 2, 2010 at 2:48 am

    I'll actually get around to reading it today. Last night I was too busy watching the Giants kick ass!

    Also, there was rioting in the streets in SF. Glad I live in the East Bay.

  • 74. Cat  |  November 2, 2010 at 2:51 am

    Of course they try to turn one aspect (having a belief that is based on ignorance and the unwillingness to change that belief when presented with facts that dispel that belief) into an attack on the whole person. "You told a lie" is different from: "all you are is a categorical liar".

    Another attempt to victimize themselves.

  • 75. Gregory in Salt Lake  |  November 2, 2010 at 2:52 am

    LOL! Ditto Kate : D

  • 76. Ann S.  |  November 2, 2010 at 2:53 am

    I was in SF last night for my shift at Election Protection. I was glad the shift ended in the 8th inning and I was out of the central part of the city by the time the game ended.

    It was a slow night as far as taking calls. Either everyone was watching the game, or everyone already knows where their polling places are, or voter turnout will be lower this year than in 2008.

    Oh, wait, that last one is a given.

    I will say that Texas must be doing a terrible job of informing people where they are to vote, and their secretary of state's office does not have a central link to find out, either.

    Google maps has a cool app I did not know about before for finding polling places.

    Vote! Vote! Vote!

  • 77. Lesbians Love Boies  |  November 2, 2010 at 2:56 am

    I was surprised to read that in Iowa you can register today to vote … today. I am on the fence on this. I know so many people who take voting for granted, but am only finding out today they aren't voting because they aren't registered.

  • 78. Bill  |  November 2, 2010 at 3:08 am

    Jonathan, I think that you've phased the response from our side well. I do think that there is a case to be made for tradition, but you have to frame the argument as one that is not taking anyone's rights away but one that avoids the breaking of new ground. I've read that judges don't like to be too far ahead of public opinion, so an appeal to retain the status quo until public opinion catches up may be a smart move.

    All I'm saying here is that a judgment for our side isn't necessarily a slam-dunk at this level. It seems that the proponents aren't rolling over here, the way they did at the District level.

  • 79. Alan E.  |  November 2, 2010 at 3:09 am

    They feature it on Facebook at the very top of the page, today, too.

  • 80. Kathleen  |  November 2, 2010 at 3:17 am

    I don't see any new arguments Proponents didn't already make at trial – other than now they're making the arguments as a specific response to Walker's ruling.

  • 81. Michael Ejercito  |  November 2, 2010 at 3:24 am


  • 82. Alan E.  |  November 2, 2010 at 3:24 am

    “It Gets Better”: Philadelphia gay football

  • 83. Alan E.  |  November 2, 2010 at 3:25 am

    TNA Wrestling launches anti-hate campaign

  • 84. Ronnie  |  November 2, 2010 at 3:33 am

    hahahaha….Michael Ejerkcito Is een Homofobisch Debielgeweldvoorstander….. ; ) ….Ronnie

  • 85. DrPatrick1  |  November 2, 2010 at 4:05 am

    @rhie, yeah you did need to read at least a bit about the article. Kye is FTM, and thus, as other comments have stated, it is mainly an issue of Testosterone. BUT, it is also an issue of him being allowed to play on the women's team as long as his legal documents declare he is female.

    The problem isn't what they are doing, (I'm not sure there is a better way). It's just that this seems to be a tricky thing for peeps in Kye's position.

    As for the difference between sex and gender, I'm not sure that I agree, though the basics may be accurate, I'm not sure the language is the best. A uterus is typically present one at a time, and in females. HOWEVER, there are certain times where a woman can be born with two, or none. Is the double uterus woman twice the woman, and the woman born without a uterus any less of a woman? What about after a hysterectomy (Note, there are many cultures who think that if a woman undergoes a hysterectomy, she is no longer a full woman!)? Is it the organ that determines your sex? If so, which organ? which collection of organs? The more organs you include the more likely it is that an anomaly occurred which creates an "other" or not exactly fitting the generic description of the sex you're describing.

    The bottom line, while the vast majority of people have a certain set of organs which corresponds with a specific sex, and that corresponds correctly with a specific gender (using the words as you've used them), and they find themselves attracted to others who have a different sex/gender, there are so many variables in this equation, that it often doesn't come out exactly this way. (In embryology we know that whenever, wherever an anomaly could occur, it will, with varing results. Often this is disasterous, but sometimes, this provides an advantage. Thus, evolution). To assume that all people can be categorized into one of two boxes is totally absurd. Many non-western cultures completely reject the idea of a binary gender schema. It would be nice to see gender as not such a vital part of human identification (why is it listed on the driver's license? Does it matter with how you drive?).

    ANYWAY, Cheers to you all.

  • 86. Alan E.  |  November 2, 2010 at 4:26 am

    Unfortunately, there is a need for test cases like Kye, but there also needs to be an open conversation at the same time. The situation may not be perfect, but at least there isn't a knee-jerk reaction without hearing the whole thing out.

  • 87. Alan E.  |  November 2, 2010 at 4:28 am


    As surprising at it may seem, people who hold a different opinion can make valid points. Yes I'm aware that Michael can be trollish and instigative, but you should allow yourself a little room to say "that is a valid point." However, just because someone has a single valid point doesn't mean the conclusion is correct (or entirely based on that one point). You may save yourself some stress if you attempt to have a conversation (even with a troll, but this guy hasn't started calling horrible names yet like some other visitors). Every conversation is an opportunity to change minds. Rhetoric like yours–I completely understand where it is coming from, and it may be necessary at times–isn't always the prescribed reaction every time.

  • 88. Mouse  |  November 2, 2010 at 4:49 am

    It's frustrating that when progress is made toward restoring our rights via the courts – such as declaring things like Prop 8 and DADT and DOMA unconstitutional, we are forced to endure denied justice because there are always stays during the appeal process…

    But when something horrible passes legislation, like Prop 8, even though there is an immediate case filed to challenge the constitutionality of it, the evil legislation is put into effect immediately.

    I understand that the circumstances are different, but it's tiresome to be forced to wait for justice when injustice is always granted immediately and always stays every step forward we make toward getting our rights back.

    It might be just how the process works, but it certainly adds to the feeling that we are second-class citizens who are a little less equal than every one else.

  • 89. Mouse  |  November 2, 2010 at 4:54 am

    Why do we still have to segregate men and women for sports?

  • 90. Judy  |  November 2, 2010 at 4:54 am

    Italy's Premier says his dalliance with an underage girl is better than with a gay. Many of his top level people are backing him up, saying that he said nothing wrong.

  • 91. Gregory in Salt Lake  |  November 2, 2010 at 4:56 am

    I agree mouse…well said!

    As the tea-party extremist are gleeful at the polls today, our household is affected negatively too by the "other" 9th circuit court of appeals debate:

    seems so unfair that a majority can dictate who are 2nd class persons based on prejudice and bias. GRRRRRR!!!!!

  • 92. goudy  |  November 2, 2010 at 5:10 am

    The comments about it are worse then his statement……

  • 93. Gregory in Salt Lake  |  November 2, 2010 at 5:11 am

    interesting discussion…..

    I am so very glad it is even being debated! Gay persons have become more mainstream….while persons like Kye and our dear P8TT Michelle are treated far worse. I'm glad Kye is telling his story. ((HUGS)) to Kye, Michelle and all!

  • 94. Gregory in Salt Lake  |  November 2, 2010 at 5:18 am

    Hope you are correct EO (the waiting game part…..not the balance of legislature part….)

    One functional part of the shifting of some power back to conservative (at least in Utah) is there is less tension in the air…. a curious dynamic but palpable.

  • 95. Gregory in Salt Lake  |  November 2, 2010 at 5:22 am

    LOL Sagesse and EO! Thanks for hearty laugh–I needed that!

  • 96. Gregory in Salt Lake  |  November 2, 2010 at 5:26 am

    interesting question Mouse….what do you propose to make it more fair? Handicaps like golf?

  • 97. Gregory in Salt Lake  |  November 2, 2010 at 5:29 am

    appreciate the sentiment but I find "uptight, small-minded, insecure……people" in all walks of life……..straight people don't hold the patent.

    CERTAINLY the opposite is true as well….as you continually demonstrate by your support Straight Ally. ((HUGS)) Gregory

  • 98. Gregory in Salt Lake  |  November 2, 2010 at 5:37 am

    @ Ann S.
    I used the Google app to find where to vote, thanks : ) Glad you you escaped in the 8th inning and was not caught in the mayhem! Could be dangerous!

  • 99. Gregory in Salt Lake  |  November 2, 2010 at 5:45 am

    have you seen this related documentary? It was interesting how didn't take long for "straight" teams to accept the gay rivals….

  • 100. Ronnie  |  November 2, 2010 at 5:52 am

    Although it was a valid point….It wasn't even his valid point..he made no valid point..he did exactly what he always does…c&p with the intent of pissing people off (hence troll)….there has been next to no conversation with this guy…all he has ever done was post talking points & be pwnd & debunked as a wannabe lawyer who has no idea, the majority of time, what he is talking about…..He has not answered the majority of questions asked of him…& he repeatedly disrespected those (forcibly in the closet) LGBT soldiers who have risked their lives so that he can run his mouth off about them (hence ingrate)…& that is just one occurrence of his anti-gay rhetoric …

    I have attempted to have a conversation with him the 1st time he posted here & nothing but talking points from him with no direct answers…& they were all underhanded insults towards LGBT people & our Heterosexual supporters….If I wanted to talk to a wall, there are 4 holding up the ceiling above my head…If I wanted to talk to someone who is just going to stare & wag his tale, I have my dog for that….

    I am done beating around the bush with Homophobic people while they gear up to physically beat us…people like him who support Destroy..I mean "Protect" Marriage & NOM etc etc gleefully seek to destroy & control our lives & force us to conform to their theocratic agenda while attempting to undermine American Freedom & Humanity as well as disempower us…I choose to not let them do it anymore..If he doesn't like it, maybe he should reevaluate his stance on the personal lives of those in which he has no say so in, to begin with…..

    They are so beyond delusional that they think their opinions are actually required for us to live our lives as nature intended…even worse, they are actually under the impression that they can physically, mentally, & constitutionally force us to live our lives revolving around their opinions of us….& we allow them too….

    Over 43 instances (& this is me combining the suicides in one point) of persecution towards LGBT people, perceived to be LGBT people, & Heterosexual allies in 2010 alone & the year is not even over…..Maggie Gallagher, Brian Brown, Tony Perkins, etc etc etc etc etc etc etc…continuously FAIL to see what parts they play in these instances….the collective ideology & propaganda spouted out by the lot of them includes "Homosexuals are not being persecuted at all"…."Homosexuals are not being discriminated against at all"…"Christians are being persecuted blah blah blah" (but can not name enough of those to count on one hand)…IT'S BULLSHITE!!!!!!….I am done being made into a victim by Fascist porcine's like them who clearly think they are a part of some superior form of humanity with their selfish heterosexual only "moral" superiority & highly (not to mention historically proven to be) destructive behavior of "Me me me, you will do as I say or I will force you to"…NO MORE!!!….<3…Ronnie

  • 101. Steve  |  November 2, 2010 at 6:31 am

    Because women – on average – perform worse than men. That's not meant to be offensive or anything. It's just a fact. So it doesn't make much sense for women to compete against men in single sports.

    You can make a case for mixing genders in team sports. And in some cases like tennis doubles it can certainly work fine. But in other sports there would be an incentive for the team to field more men than women. This case is about basketball. Men tend to be taller, so they have a clear advantage.

  • 102. Steve  |  November 2, 2010 at 6:36 am

    That's actually a misquote. Or more accurately, a partial quote that changes the meaning somewhat. The full version goes like this:

    "Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. <b<As previously noted, […] deference does not mean abdication.</b>"

    In any case, the military deference doctrine is complete and utter bullshit. Yes, the military works somewhat differently from civilian society. But not different enough to give it such a special status. It's ridiculous.

  • 103. Kevin S.  |  November 2, 2010 at 6:37 am

    Delaware, actually. It's bad enough that we spawned NOM. Don't stick us with that… thing, too.

  • 104. Kathleen  |  November 2, 2010 at 6:40 am

    NJ is also point of origin for one of my daughters-in-law and one of my grandchildren, for which I will be eternally grateful. Thank you, NJ!

  • 105. Richard A. Walter (s  |  November 2, 2010 at 6:46 am

    Sorry about that mistake. Of course, for the sake of my Wiccan friends, I am so glad that Christine O'Donnell is vehement about telling people she is not a witch. And the most likely reason she is not a witch is probably because she could not find a gathering that would accept her. After all, Wiccans do need to have a certain level of trust in you before they will associate with you on any level other than the most superficial. And would someone please send that woman to a good hairstylist? She really needs a decent deep conditioning treatment on that dark brown straw of hers.

  • 106. Ronnie  |  November 2, 2010 at 6:48 am


  • 107. Ann S.  |  November 2, 2010 at 7:07 am

    Gregory, thanks for letting me know! I have to say that it looks pretty cool, and it is probably more familiar to many to use Google maps than to try to access their county elections office. Trust me, that latter can be very frustrating.

  • 108. Gregory in Salt Lake  |  November 2, 2010 at 11:24 am

    Breaking News Alert: Chris Coons (D) beats Christine O'Donnell (R) in Delaware Senate race
    November 2, 2010 8:03:24 PM

  • 109. Prop 8 proponents, Imperi&hellip  |  November 2, 2010 at 12:27 pm

    […] usual, Johnny-Kathleen-on-the-spot posted the Scribd docs last night on the DADT stay news thread and, as usual, P8TT folks got into a spirited discussion about it. Check it out (around comment […]

  • 110. Richard A. Walter (s  |  November 2, 2010 at 12:50 pm

    At least Delaware had more sense than North Carolina. Here, Richard Burr got re-elected. He is not only in big oil's pocket, he is also very anti-equality for anybody who does not believe 110,000% the exact same way he does about how this country should be run.

  • 111. Rhie  |  November 3, 2010 at 4:25 pm

    Yea. I have been following it pretty well. I just got stuck in the triple negatives here. Stay of the injunction of the don't… .

    Did you ever read those Choose Your Own Adventure books? Where you could decide to follow the path or go to the cave and turn to the appropriate pages? That's how I am reading this and DOMA and Prop 8. If proponents then opponents… . It makes it easier to understand for me.

  • 112. Rhie  |  November 3, 2010 at 4:36 pm

    Agreed. It is a very reasonable distinction you are making. Unfortunately for both of us people in general are not at all reasonable. They will read both "you told a lie" and "you are a liar" as the same thing. Especially when it involves something like religion, which many people cling to as a primary identity. Any criticism of the religion, no matter how fair, is seen as a very offensive personal attack. It's sad really.

  • 113. Rhie  |  November 4, 2010 at 6:29 am

    You are absolutely right – that wasn't the best way to make my point about gender and sex and body. My aunt who has no uterus is no less a woman or a female.

    The English language is just so clumsy regarding gender, sex, and orientation. I am glad you did understand what I was trying to say. Language is based on a binary system of gender, sex and orientation but people just don't fit that system. You are right – it is very complicated.

  • 114. Rhie  |  November 4, 2010 at 6:30 am

    Mighty Ducks!!!

  • 115. Rhie  |  November 4, 2010 at 6:44 am

    Well, the answer "women are worse than men" is only have the starting point. There are many questions to be asked after that:

    Are women really worse than men? Are they only worse because men are the yardstick? What if we used a different metric?

    Are women biologically worse than men or is it cultural? Is it that there is more money, more history, more support for men's sports? Are women really not as interested in sports?

    Title IX and the response to it imply that it isn't that women are naturally worse or less interested in sports than men.

    In colleges that weren't stupid about it and didn't just close down sports rather than give parity, the gap has been closing steadily. Women are getting better.

    Culture is a powerful force. People think that women aren't interested in, say, the WNBA…but look at the difference in advertising and sponsorship. I would love to see a Title IX for advertising in pro sports.

    I was very excited that women were brought to the forefront this Olympics – and not just in articles about the hotties of sports or selling lipstick. I am still seeing advertising that uses Lindsey Vonn in full ski gear for a cold medicine. That is huge.

    Yes there are physical factors – the average woman athlete couldn't be on an American football team with the average NFL player because women simply don't bulk up that way.

    but for soccer, swimming, running relay, skiing, luge, ski jump, and other speed or hand-eye sports I think that parity in culture will lead to parity in play.

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