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BREAKING: LCR appeals DADT injunction stay to U.S. Supreme Court

DADT trial

By Eden James

Per a bulletin from Rex Wockner, the following news just broke:

Attached please find the Log Cabin Republicans’ application to vacate the Ninth Circuit order and related papers that were just filed with the US Supreme Court. Also find below a quote from R. Clarke Cooper, executive director of Log Cabin Republicans, and Dan Woods, White & Case partner who is representing Log Cabin Republicans. Also included below is a short Q&A regarding process moving forward that you may find helpful.

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

“It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court.”

Dan Woods, White & Case:

“We have today filed an application with the United States Supreme Court asking it to vacate the Ninth Circuit’s order staying Judge Phillips’s injunction pending appeal. We argue in this application that the Ninth Circuit order was arbitrary and an abuse of discretion and should be vacated immediately. We continue to look forward to the day when all Americans can serve in our military without regard to their sexual orientation,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans.

Q: Will the entire Supreme Court be involved in considering whether to vacate the Ninth Circuit order?

A: That is up to Justice Kennedy. He may decide himself or he may refer the application to the full court.

Q: How long will the review take?

A: That is also up to the court. The Court may allow the government the opportunity to respond to our application.

Q: What are the next steps if the Court vacates the ruling/doesn’t vacate the ruling?

A: If the Court vacates the stay order, DADT is dead pending the appeal, and we have for all intents and purposes won. If it doesn’t, we will next move in the Ninth Circuit to expedite the Judge’s decision.

Here are the documents, via Scribd:

Application to Vacate:

[scribd id=41203937 key=key-rvitc60fnck9xx95xuf mode=list]

Appendix:

[scribd id=41203956 key=key-1myckak6wedoi4bgksez mode=list]

Certificate of Service:

[scribd id=41204369 key=key-qfbi36m9vop2b1h1gwu mode=list]

52 Comments

  • 1. Ann S.  |  November 5, 2010 at 5:44 am

    Go, LCR!

  • 2. StraightForEquality  |  November 5, 2010 at 5:47 am

    Indeed!

  • 3. JonT  |  November 5, 2010 at 5:48 am

    Good! I have no feel for what SCOTUS will do though… They will probably want to maintain the 'status quo', but it would sure make my month if the stay was vacated :)

  • 4. Ronnie  |  November 5, 2010 at 5:50 am

    YA YA!!!!!…..<3…Ronnie

  • 5. Kathleen  |  November 5, 2010 at 5:53 am

  • 6. Bill  |  November 5, 2010 at 5:54 am

    You'd think we were fighting to allow Unicorns into the military or something…

  • 7. cc  |  November 5, 2010 at 6:00 am

    And the fight continues! It is just to bad our service men and women and their families are traped in the middle.

  • 8. Alan E.  |  November 5, 2010 at 6:04 am

    Just like unicorns, gays don't exist in the military mmkay.

  • 9. Straight Ally #3008  |  November 5, 2010 at 6:06 am

    Goodbye! Me am Bizarro!

  • 10. Straight Ally #3008  |  November 5, 2010 at 6:09 am

    http://www.youtube.com/watch?v=sFfBuzddUMk

  • 11. Sagesse  |  November 5, 2010 at 6:10 am

    It's a chess game, and this is LCR's next move. It must be nerve-wracking for the servicemembers who are serving in silence. They don't deserve to be caught in the middle.

  • 12. aaron in san fran  |  November 5, 2010 at 6:13 am

    The LCRs are probably why 30% of the gay vote went to republic candidates this week. Time got turned back because of this, not forward. The LCR know, or should know, that DADT will have to be reversed by Congress to stick, and now it won't happen for at least the next 2 and more likely the next 8 years.

  • 13. Kathleen  |  November 5, 2010 at 6:18 am

    While there is some question as to whether a single federal district court judge should issue a global injunction, there is absolutely no reason that Congress must repeal DADT rather than having it struck down by the federal courts. In fact, it has a better chance to "stick" long term if struck down by the Supreme Court than it would be by being voted out by Congress.

  • 14. Bob  |  November 5, 2010 at 6:25 am

    that's what I'm wonderng aaron, will this court case have any impact on the Service Members United roadmap to repeal??

  • 15. Kathleen  |  November 5, 2010 at 6:27 am

    These are two different paths to getting rid of DADT. I think they both need to be pursued.

  • 16. Straight Ally #3008  |  November 5, 2010 at 6:34 am

    It'll be effectively impossible in the incoming Congress, which just took a step to the right. And things could get worse in 2012. Wonder if anything can really be done in the lame duck session? Common Sen. Reid, you beat the polls, pull this one out!

  • 17. bJason  |  November 5, 2010 at 6:40 am

    IANAL but it sounds like a pretty strong argument to me.

  • 18. Rhie  |  November 5, 2010 at 6:51 am

    Watching…

  • 19. Rhie  |  November 5, 2010 at 6:55 am

    Put your right foot in, Put your left foot out…Do the hokey pokey and hope it's alright…

    Sorry, know it's a serious issue but I couldn't help it.

  • 20. Richard A. Walter (s  |  November 5, 2010 at 6:57 am

    NOw if we can just keep the NOMbies, Focus on the Family, the AFA, the FRC, and all the others of their ilk away from Justice Kennedy so that they don't get the chance to intimidate him into going along with their agenda to convert the United States into the Republic of Gilead.

  • 21. Steve  |  November 5, 2010 at 6:57 am

    Their strongest point is really that the 9th Circuit Court of Appeals ignored several of the points raised, most notably the implications of Lawrence vs Texas (while citing a couple of cases pre-dating that). And they just assumed that a stay would cause "irreparable harm". I concede that there may be some confusion and maybe harm here and there, but certainly nothing that has lasting effects.

    But SCOTUS will probably just bow down to the military as usual.

  • 22. Richard A. Walter (s  |  November 5, 2010 at 6:58 am

    Click the box first, then submit.

  • 23. Alan E.  |  November 5, 2010 at 7:04 am

    Just read the LCR document, and it says exactly what I was thinking when the first stay was requested from the 9th circuit. There is nothing irreparable about the changes that the government would have to put in place as they are only temporary, and they can't prove the other factors either.

  • 24. Don in Texas  |  November 5, 2010 at 7:08 am

    That's not exactly true, depending on a final ruling by the Supreme Court. The justices could rule that DADT does violate the basic rights of gay military members. If it does that, then DADT is null and void and has been null and void since its inception.

    Congress can repeal DADT, but the Republicans are not disposed to do so. A ruling by the Supreme Court could put the nail in the coffin of this discriminatory law once and for all. If Congress were to re-enact something similar to DADT, such a law would have to be very carefully crafted to avoid any of the violations determined by the Court. And that is not an easy task.

  • 25. Straight Ally #3008  |  November 5, 2010 at 7:25 am

    Don't worry, as I typed it I was thinking: "It's just a JUMP to the left…and then a step to the ri-i-i-ight…"

  • 26. Straight Ally #3008  |  November 5, 2010 at 7:29 am

    I really, really hope that efforts to revive a law that is a step backwards in civil rights would get harder and harder with the passage of time, during which the military moves along as well and professionally as it ever as. I mean, people in the Religious Right still want to reverse Roe v. Wade, but there isn't a rising pro-choice sentiment like there is with pro-LGBT sentiment in this country.

    Can our side just win already? I'm so sick of these yahoos who are on the wrong side of history.

  • 27. Don in Texas  |  November 5, 2010 at 7:38 am

    It will be interesting to see if Justice Kennedy rules on this application himself or refers it to the full Court for decision.

    Kennedy was the author of both Romer v. Evans [striking down an amendment to the Colorado constitution which stripped gays of all legal rights] and Lawrence v. Texas [overturning a Texas statute which made homosexual conduct illegal and establishing certain rights of "intimate conduct" for gays and lesbians.]

    My guess is that Kennedy will refer the matter to the full Court.

  • 28. Lawrence  |  November 5, 2010 at 7:52 am

    Kathleen, would you be inclined to say that Justice Kennedy is more "Gay" friendly or more "Straight" friendly?
    I would love to see him vacate the stay or even have all nine of them make that decision to vacate the stay as this would indicate how they might rule later, at the same time if it was vacated, by the time it would be decided at the appeals level, it would be more or less moot. It will be nice to see this unjust law finally be struck down seeing as it doesn't have much of a chance going down at the congressional level. Thanks for any insight on this one.

  • 29. Kathleen  |  November 5, 2010 at 7:58 am

    Kennedy wrote the majority opinions in Lawrence v Texas and Romer v Evans, two very important cases involving gay rights. In general, he seems to fall on the side of equal protection for gs&ls. However, as has been pointed out before, this case involves the military – not the same as most governmental actors.

  • 30. Bennett  |  November 5, 2010 at 8:25 am

    NOM's Brian Brown warns the justices of the United States Supreme Court:

    The National Organization for Marriage directs your attention to the recent retention votes in Iowa. Dismiss this appeal as FRIVILOUS of NOM will mobilize the dark forces of hate, bigoty, and discrimination to secure a constitutional ammendment that ends life time appointments as well as a little complimentary provision that provides for a SCOTUS retention vote. Surrender Dorothy! er uh, Surrender SCOTUS.

  • 31. Richard A. Walter (s  |  November 5, 2010 at 8:27 am

    And why would I not be surprised if that dirtbag did exactly that, Bennett? I do not put anything past that despicable excuse for a human being.

  • 32. Alan E.  |  November 5, 2010 at 8:36 am

    Everyone should read this review of the stay and the procedures over at Towleroad.
    http://www.towleroad.com/2010/11/log-cabiners-mak

    It's very well written, thorough, and has easy to understand vernacular.

  • 33. Bennett  |  November 5, 2010 at 8:36 am

    So you wern't fooled? :)

  • 34. Mouse  |  November 5, 2010 at 8:38 am

    I guess the military somehow has this wacky concept that in order to stop discriminating against people, they can't just go cold turkey.

    Instead, they want to gradually work into a new routine with a detailed plan. Maybe set up a schedule of discriminating at set times to break the usual triggers that set off incessant discrimination practices. Instead of dismissing service members with their morning coffee and after every meal and during all their 15 minute breaks, they'll break things up and limit themselves to ruining the careers and lives of honorable men and women only five times a day for the first couple of weeks.

    Then, they'll ween off and cut back to just three lives ruined per day, shifting the schedule so that new triggers aren't formed.

    After a couple of months, they'll just chew some gum every time they get the urge to take a person out of a critical military position and dismiss him based on locker-room talk of his sexuality or spiteful tattling of his fellow service members who are jealous over being passed over for promotion.

    Maybe with a year of gum chewing, they'll be free of this bad habit, and LGBT service members can be free to exist without persecution without causing their superiors to have fits and relapse?

  • 35. Richard A. Walter (s  |  November 5, 2010 at 8:49 am

    No. But I guess it is because 47 years, 7 months, and 28 days of living in the Bible belt have really been an education in the fine art of religious and spiritual warfare and abuse. That and an abusive, alcoholic, atheist adoptive "father" who knew the Bible better than most of the CINO's in NOM, Focus on the Family, AFA, et al., and would not hesitate to misuse the Bible to get his way, and to justify his abuse of anyone and everyone. Guess you could say I got in-house training on the treachery NOM practices while I was still a child.

  • 36. nightshayde  |  November 5, 2010 at 9:15 am

    Oy, Mouse. I fear you may be correct.

  • 37. Mouse  |  November 5, 2010 at 9:21 am

    I forgot to emphasize this point.

    Ceasing to discriminate isn't difficult.

    You don't need a plan for what you are not going to do.

    Your plan for what you are going to do is the same things you have always done minus the parts that involve discriminating (which are, incidentally, ridiculously easy to identify).

    No rocket surgery required.

  • 38. Bob  |  November 5, 2010 at 9:51 am

    I like it, keep the pressue on, work every angle,

  • 39. Steve  |  November 5, 2010 at 9:53 am

    @Mouse
    Yeah. It was the same with the integration of African Americans. The executive order was signed in 1948, but actual change took a few years. Most of the actual integration actually happened during the Korean War (so much for "we can't do this in the middle of two wars"). The US Army took heavy losses during the start of the war. So they commanders were more or less forced to throw whites and blacks together to keep units up to strengths. It worked just fine. Race didn't really become an issue until the Vietnam war.

    Countries like Canada and Britain have shown that change can happen over night with no ill effects whatsoever. Though their homophobic policies probably weren't as deeply ingrained as in the US military, there was still lots of concerns before it happened.

  • 40. Sagesse  |  November 5, 2010 at 10:27 am

    @Steve

    The African Americans served in segregated units in segregated barracks. There was actual 'integration' to do. LGBT servicemembers are already scattered throughout the forces. No officers or enlisted need to move around to achieve 'integration', so its can be done more or less immediately, as other countries have done.

  • 41. Ray in MA  |  November 5, 2010 at 11:13 am

    Just a note of interest… from last February … this didn't seem to hit the media much (or did I miss it?)

    Pentagon announces end of ban on women on subs

    By Philip Ewing – Staff writer
    Posted : Saturday Feb 27, 2010 9:26:49 EST
    http://www.navytimes.com/news/2010/02/navy_women_

  • 42. miki mickey  |  November 5, 2010 at 11:54 am

    yeah,to hell with equal rights under the constitution.let's just let religion dictate the law so we can sell our children into slavery.and we can start burning animals in the name of god.
    oh boy.you really should read the constitution,the federalist papers,and dozens of treaties wherein they discuss the fact that we were neither founded on,nor are our laws or constitution based on any rekigion.

  • 43. miki mickey  |  November 5, 2010 at 12:02 pm

    nor do they deserve to be outed by one of their homophobe brothers or sisters in arms.we have lost a lot of highly valuable members of our military,the majority of whom are fluent in arabic.but bigotry and hatred still exsist.and it's so so shameful that men and women who are willing to give up their lives for our freedom are treated as second,even third class citizens.and the base of this hatred is the christian right,whose lord and savior tell them that hate is wrong and is a sin,pure and simple.

  • 44. miki mickey  |  November 5, 2010 at 12:11 pm

    just don't forget,the constitution overrides religion,which is a wonderful thing.after all,the founders of the u.s. left europe for that very reason.religion was the law,and it was doing nothing to progress the human mind or innovation.if they had lost the revolutionary war,where would we be now?just another repressive hate filled theocracy.and again,that is what the founders gave their hearts,souls and lives for.to try to change this country into a theocracy would be a huge slap in the face to all they fought and died for.
    and in case you didn't know,or didn't want to know,marriage is a right,not a privelage.

  • 45. Rhie  |  November 5, 2010 at 12:25 pm

    LOL that's awesome :) Great minds!

  • 46. mike  |  November 5, 2010 at 1:34 pm

    If it was struck down by SCOTUS then the case would be used as a reference in future cases preventing lengthy lengthy legal battles. If congress simply votes to repeal DADT then there is still opportunity to create and enforce similar bans in the future.

  • 47. Michael M  |  November 5, 2010 at 1:36 pm

    Wow really? Are the republicans fighting for gay rights now? Unless Im mistaken… I dont know much about politics and who the "Log Cabin" Republicans are.

  • 48. Richard A. Walter (s  |  November 5, 2010 at 1:56 pm

    The Log Cabin Republicans are the LGBT's who are registered Republicans. They have been trying to get this case into the courts since 2004, when George Bush the Worst was in the Oval Office.

  • 49. Rhie  |  November 5, 2010 at 5:06 pm

    Olson is a Republican and one half of the legal team that is fighting for the repeal of Prop 8.

    LCR Wiki Page

  • 50. Steve  |  November 6, 2010 at 1:49 am

    You don't know there was a lot of theocracy in the early colonial period? Maryland and Rhode Island were about the only two colonies that had freedom of religion in the 17th century. It didn't last in Maryland and RI was founded by Quakers who fled religious persecution in MA!

    There was a tremendous amount of religious intolerance and oppression in colonial America. One reason being that the people who fled England were often radical fringe groups. And anti-Catholicism continued on well into the 20th century. The "founding fathers" lived over a century after that and their ideas were as much a reaction to the events of Europe as to the barbarism of 17th century America.

  • 51. Gregory in Salt Lake  |  November 6, 2010 at 6:54 am

    A family favorite movie! for 20 years! : )

  • 52. Maggie  |  November 8, 2010 at 4:28 am

    Is there a timeline of when SCOTUS will say something about the LCR appeal? This is killing me! It's worse than waiting for the next episode of Glee!

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