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Department of Justice requests emergency stay on DADT injunction

DADT trial

By Adam Bink

Earlier today, the DOJ filed for an emergency stay from the 9th Circuit in the Log Cabin Republicans v. United States case. Last week, a panel from the 9th Circuit ruled that given the approaching full repeal of DADT, and the government’s recent filing in the DOMA case, there was no need for a stay. Today, the DOJ said there was.

Metro Weekly:

The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for “emergency” reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the “Don’t Ask, Don’t Tell” law — a motion that asks for the stay to be put back in place by “close of business” on Friday, July 15.

Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit’s claim that “it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654″ — the DADT law. DOJ countered today that “it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010″ in a letter that argues that — after the Don’t Ask, Don’t Tell Repeal Act was signed into law — Section 654 became a “transitional provision.”

The government argues that “§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 ‘shall remain in effect until such time that all of the requirements and certifications required by’ the Repeal Act ‘are met.'” Because of this provision in the repeal act, the government argues, “§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process.”

The chief of staff of the Repeal Implementation Team at the Department of Defense — Marine Corps Major General Steven A. Hummer — detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.

Hummer states, “At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress.”

[…]

In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for “a temporary administrative stay of the injunction” while considering the emergency motion. DOJ is asking for quick action on that request. “We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011,” the lawyers wrote to the court.

 

32 Comments

  • 1. Danajeanne  |  July 14, 2011 at 8:06 pm

    Does this mean that they're trying to repeal the repeal?__

  • 2. katie  |  July 14, 2011 at 8:07 pm

    pathetic is the only word that comes to mind….

  • 3. Ann S.  |  July 14, 2011 at 8:07 pm

    I'm not sure if the DOJ knows if it's coming or going . . .

  • 4. JonT  |  July 14, 2011 at 8:09 pm

    Just end this shit already!

    Ahem.

  • 5. Ronnie  |  July 14, 2011 at 8:35 pm

    Booooo….hiss hiss…booooo…. 8 /

    On a happier note…..There is a new short film making the rounds….It is called "The Edge of Glory" directed by Sean Penberthy. This film is a moving story of scenes with no words but the lyrics & soundtrack of Lady Gaga's "The Edge of Glory"……Enjoy….Love & more love….xoxo………. <3… Ronnie:

    [youtube be9w4QpQ4Xw http://www.youtube.com/watch?v=be9w4QpQ4Xw youtube]

  • 6. Reformed  |  July 14, 2011 at 8:35 pm

    An apparant redefinition of the word emergency.

  • 7. Sheryl_Carver  |  July 14, 2011 at 8:50 pm

    For those of us old enough to remember Yul Brynner's character in WestWorld, DADT seems to be even harder to destroy. And the DOJ/Obama/??? can't seem to figure out what they really want. This is crazy-making!

  • 8. peterplumber  |  July 14, 2011 at 8:57 pm

    Hmmm, I read the "Letter Brief" at the end. It sounds at tho the Government wants the case to continue in the court system to be declared unconstitutional by another court or two.

    Question 3 of the July 11 order directs the parties to show cause why this
    case should not be dismissed either immediately or when the President certifies
    that the conditions for repeal of § 654 have been satisfied. If the sole question
    before the Court is whether § 654 as originally enacted, and as it existed at the time
    of trial, is constitutional, then this case is moot, as explained in Section 3 of this
    letter brief. In the government’s view, however, this case is not yet moot, because a
    live controversy remains regarding the constitutionality of the statute as it now
    exists.

  • 9. David Henderson  |  July 14, 2011 at 9:20 pm

    The problem with the government's view is that § 654 "now exists" exactly the same as when it was "originally enacted". The so-called "DADT repeal" did not change § 654; it just put in place a plan which might, some day, change § 654. Therefore there is a live controversy because the government claims that the repeal has already happened, while LCR believes time is linear.

  • 10. PBJ  |  July 14, 2011 at 10:49 pm

    The administration sure knows how to make lemons out of lemonade. They manage to succeed on a DADT repeal, but they take so long and move so haltingly and offer so many compromises that they're beaten to the punch by the courts TWICE. No doubt the president won't come out in support of marriage equality until after the Supreme Court rules Prop 8 unconstitutional. It's like Clinton supporting gay marriage after instituting DADT and DOMA in the first place. Uh… thanks?

    Don't get me wrong, though. The Repubs are a thousand times worse.

  • 11. Bryce  |  July 15, 2011 at 1:48 am

    I'm taking it easy on the administration. I don't like this decision one bit. It really sucks, and I fault them for it. And I think the President is just wrong for saying that marriage should be left to the states. (I know of no less than 14 SCOTUS cases which would beg to differ.) He makes me mad a lot.
    But, I would just say this: read the DADT stay appeal, and then read the filings they've made in the DOMA cases recently. You can't help but realize that the Obama administration is in a position it doesn't like, and is having to make arguments (for DADT) that it can't possibly believe (in light of their DOMA pieces).
    Politics sucks, but the nature of American politics is that politicians have to kowtow to people with whom they wouldn't typically agree. Politicians who do SOME stuff for us, can't do EVERYTHING for us. If they try, they end up doing NOTHING for us. Every time you get mad, just read the most recent DOMA briefs, lol.
    Besides, if this filing makes you mad, it is all the more reason to support Obama in 2012. Then he will be a lame-duck President, which gets him A LOT more political capitol that he can spend on us! LOL.

  • 12. ĶĭŗîļĺęΧҲΪ  |  July 15, 2011 at 2:13 am

    A bunch of whining babies… They promised the repeal by mid-summer, today is July 15 — it's exactly the middle of the freaking summer already! And they are still not ready? Bullshit! Quit defending your homophobic soldiers from the "scary" homos! The court should not grant the stay they are asking for, for there is no good reason to do that. People are suffering and have been suffering enough already. Enough is Enough! DADT is unconstitutional and you have to deal with it!

  • 13. Sagesse  |  July 15, 2011 at 4:56 am

    Houston native could be San Francisco’s first Latina federal judge
    http://blog.chron.com/txpotomac/2011/07/houston-n

    and

    Grassley hints at trouble ahead for lesbian judicial nominee
    http://www.keennewsservice.com/2011/07/14/grassle

    Has there been a non-controversial LGBT nominee to the bench? Surely they can't all be unqualified…

  • 14. Sagesse  |  July 15, 2011 at 5:00 am

    Not new, but well written.

    Lambda takes family case to the U.S. Supreme Court
    http://www.keennewsservice.com/2011/07/14/lambda-

  • 15. Ronnie  |  July 15, 2011 at 5:33 am

    Visa Employees say "It Gets Better"………… <3…Ronnie:
    [youtube X0ZYieA90_Y http://www.youtube.com/watch?v=X0ZYieA90_Y youtube]

  • 16. menergy  |  July 15, 2011 at 5:44 am

    My head is spinning….it's incomprehensible to me…..but then

  • 17. Straight Dave  |  July 15, 2011 at 6:18 am

    The military are just control freaks (big surprise). They want to do this exactly on their schedule according to their plan, and not a minute sooner. Continuous appeals of this sort are the only way that can keep that plan on track. They really don't like the courts pushing them along, at all. But that's what happens when you dawdle, and that's what Gates was concerned about. They have painted themselves into this corner.

    I really don't think the court will let them stall for 3 more months (certification + 60), unless they take it to SCOTUS. The good thing this time is that, while all this squabbling goes on, DADT is frozen. We're rarely on the good side of that fence.

    I thing the court would/might/should, at most, concede a couple of weeks to finish the training. But once they're certified, it's all over. I don't think the 60 days will stick. If you're done training and ready to go, then let's go. The latest DOJ argument seemed to say they needed the extra 60 days to prepare the troops for this happening. That was totally disingenuous! They delayed certification until they really were ready. It's gonna be the longest 60 days ever, as everyone just sits around watching the clock tick. It has no practical value whatsoever and most likely will harm the troops readiness by sitting there as a big fat distraction. I'd love to see the court just toss that out the window. Just rip off the goddam band-aid. A quick ending is in everyone's best interest at this point.

    I can understand wanting a smooth finish to this sad saga rather than a ragged edge, but if Obama takes this to SCOTUS, for whatever reason, he will have fallen off the fence in the wrong direction and made it even messier. He should tell his Generals to get a move on and not put up too much of a fight when the court chops off the 60 days.

  • 18. Lodi Gal  |  July 15, 2011 at 7:29 am

    I loved that video, Ronny.

  • 19. Alan_Eckert  |  July 15, 2011 at 7:34 am

    Like a snake eating its tail

  • 20. Steve  |  July 15, 2011 at 8:04 am

    No. Just delay it

  • 21. menergy  |  July 15, 2011 at 8:10 am

    My head is spinning….it's incomprehensible to me…..but then

    From 12 July 2011 Military.com, an online newsletter I subscribe to :
    excerpted from the article on the latest federal lifting of the injunction:

    "But it's unclear whether the Pentagon will pursue the appeal, since defense officials already have said they'll stop enforcing the ban to comply with last week's court order that blocks the military from discharging anyone based on their sexual orientation."

    See why my head's spinning? The DOJ moves one way, the DOD has just moved in reaction earlier in another way to allow new enlistees who are gay/lesbian, and is cooperating with court orders not to discharge anyone based on sexual orientation.

  • 22. davep  |  July 15, 2011 at 8:55 am

    Thanks, Ronnie! This It Gets Better video is especially good.

    …. small world – I know one of the people in that video, and didn't even know she was going to be in one of these It Gets Better videos until I watched this. She's the woman at the end who says "Dont' give up before the miracle". She's an amazing lady.

  • 23. Jordan  |  July 15, 2011 at 9:21 am

    In response to Straight Dave and the others who're giving the military the bad eye (which many in senior leadership positions deserve- don't get me wrong), something to keep in perspective with the military is that distinct orders- including schedules- are caveats to discipline. While I don't like it anymore than you do, I blame Obama for not getting the certification done. Other than certification, I don't blame him for pushing appeals to the courts forcing DADT repeal. I indeed support him. This is why:

  • 24. Jordan  |  July 15, 2011 at 9:21 am

    Until DADT is completely removed (as in, in every legal way completely out of military orders), it HAS to be a factor in everything the military does. When the courts initially overturned DADT, there was an enormous fiasco in the recruiting world. Legally, recruiters could not enforce DADT, but all of their processes were built with DADT in mind, and local recruiting levels don't have the authority to change their Standards of Procedures (SoPs). Because of that conflict, there was a memorandum sent out by higher recruiting commands (about noon that day) that stated that recruits could state they were gay and the recruiters couldn't deny them because of this. That's all shiney, but because of the legal wrangling, and because of the reality that higher recruiting commands don't have that authority to change the actual laws (just modify the SoPs), the next day recruiters had to tell their Marines that appeal was in process and the recruits wouldn't be denied because of their initial statements, but they'd have to shut the @%#$ up from here out.

  • 25. Jordan  |  July 15, 2011 at 9:22 am

    These litle conflicts create incredible discord. It shouldn't have to- there should be a degree of common sense that recruiters could've used (and did use) in those situations, but some of them were legal and some weren't, and there was backdraft for that. That's just in the recruiting world. I can imagine how complicated it will be when things change just in my unit where we have reservists. I can imagine LCpl Example coming out this drill, then going on annual training where the laws are again switched about while in transition- SoPs change- and he's got that awkard 'Everyone knows, but now we have to pretend like I didn't say it', or worse, that he wasn't legally allowed to say it in the first place and could be punished for it at the small unit level.

  • 26. Jordan  |  July 15, 2011 at 9:22 am

    Because of those kinds of scenarios, I support the appeal in courts until repeal is legally finalized and official orders are designated for us to go by. Otherwise, there's too much room for Marines (and the other lesser services =P) to get in trouble, through no fault of anyone but Obama.

  • 27. Joe  |  July 15, 2011 at 10:28 am

    Paradoxically, I think the only thing that kept me alive was the idea that I could commit suicide and escape. From grade school, until about 40, the thought of suicide was my security blanket. I have been in a great relationship (and married since 2008) with a wonderful man. And the security blanket has all but faded from my mind.

  • 28. Steve  |  July 15, 2011 at 10:58 am

    The military was actually complying with the court order. I'm sure they are just as annoyed that things are changing back and forth in a matter of days (like with the last injunction that was overturned) and that they have to distribute new memos, which causes confusion

  • 29. Mark M. (Seattle)  |  July 15, 2011 at 11:04 am

    hehehehehehehehehe

  • 30. Mark M. (Seattle)  |  July 15, 2011 at 11:08 am

    Big hugs Joe :-)

  • 31. Jim  |  July 15, 2011 at 1:05 pm

    While we can sit here and wonder, what is the Obama Administration doing, we should all take a step back and look at all that has, or has almost, been accomplished during the Obama Administration. We wonder why is it taking so long, but folks, he's been president for 2.5 years, and just look at where we have come in those 2.5 years. What would it have looked like if a republican (excuse the use of fowl language) had won the election, and we must all think, in every election, when we vote, what would it look like if a republican wins that election.

  • 32. Straight Dave  |  July 15, 2011 at 2:34 pm

    But it's their own commander-in-chief who's causing this churn. Every time he challenges a court order, he guarantees at least 2 more swings of the pendulum. I do blame Obama for letting this flap around all over the place. The military is just doing what they do very well, folllow orders – of their boss, the courts, whoever's in charge. It's not a good situation for anybody.

    Obama can cut through this whole mess by looking his chiefs in the eye and asking if they are ready to just end this game now, and follow up with the remaining training very soon – there can't be much left. He can drop all the appeals, let the injunction remain as a de facto moratorium on DADT, and rubber stamp it when thew time comes. He could announce that he is not appealing anything and DADT is effectively dead. He can take a statesman-like action to cut thru all the BS play-acting and jump ahead to where we all know we're going. He is trying too hard to follow some script he thinks is carved in stone, even when the circumstances make it clear that is causing a lot more trouble now.

    He has the authority, he has the right vision, the right goals, and the weight of the country behind him. He has the courts behind him. Congress is just gonna get a little miffed because their plan wasn't followed to the letter. But they left themselves open to this by taking so long to get around to it, not to mention my passing DADT in the first place. Obama wants to please everyone, but the military is suffering from this flailing about. Nobody that's really worth anything will object to putting us all out of our misery. By the end of July, I predict there will be stresses and strains showing up that are entirely preventable. Screw the process, it's now getting in the way of sanity.

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