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9th Circuit partially rejects government’s emergency stay request on DADT

DADT trial

By Adam Bink

What a roller coaster last night. Karen:

Late Friday night, the three judge panel of the 9th Circuit Court of Appeals granted the government’s emergency motion to reinstate Don’t Ask, Don’t Tell, with the major caveat that the military can not investigate, penalize or discharge LGBT servicemembers while the case challenging the constitutionality of DADT is under appeal. Meanwhile, Earle Miller, an attorney at White & Case, the firm representing the Log Cabin Republicans against the US, advises gay servicemembers NOT to come out.

“The military is still enjoined from investigating and discharging servicemembers,” Miller said by phone late Friday night. “But it’s still not safe to come out. I think it’s risky.”

The news comes on the weekend when hundreds of active duty gay servicemembers had planned to come out during San Diego Gay Pride on Sunday, believing that DADT was finally and officially dead.

Chief Judge Kozinski and Justices Warlaw and Paez said in their order that the government “provide considerably more detailed information concerning the implementation of the Don’t Ask, Don’t Tell Repeal Act of 2010” than they did in their filing of May 20, 2011, in which they argued against lifting the stay. In particular, they seemed impressed by three new representations: a declaration from Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness, that said that “only one servicemember has been discharged under 10 U.S.C. § 654 since the passage of the Repeal Act; the representation that the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands have recently submitted their written advice regarding the status of their preparation for repeal and ability to satisfy the certification standards set by Congress; and the representation that repeal certification will be presented to the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff in a matter of weeks, by the end of July or early in August.”

The Court took note that the government “acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act” and set July 18 for the DOJ to explain why.

However, the Court concluded:

“In order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts, the stay entered November 1, 2010, is reinstated temporarily in all respects except one. The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask,Don’t Tell policy.”

Subsequent motions must be filed by July 22.

“The Court is slapping the government around for not filing a full briefing,” Miller said. “But the government is still trying to have it both ways, telling the Court ‘Trust us and defer to the military.”

“Obviously, having a federal court order turning DADT back on is disappointing for all the servicemembers anticipating implementation of open service,” said C. Clarke Cooper, Executive Director of the Log Cabin Republicans.

Basically, can’t join, but can’t get kicked out, may be the read.

Oral arguments are set for Sept. 1 in Pasadena, CA.

41 Comments

  • 1. Ann S.  |  July 16, 2011 at 8:25 am

    §

  • 2. Alan_Eckert  |  July 16, 2011 at 8:51 am

    So it's a stay, but not. I'm so confused

  • 3. Steve  |  July 16, 2011 at 9:51 am

    Basically it says they don't have to let any new gays in, but they can't kick out the ones they already have

  • 4. Alan_Eckert  |  July 16, 2011 at 8:53 am

    Be on the lookout for Anita-style fear mongering in California. Groups are working on a repeal of the LGBT history law that was just passed.
    http://www.sfgate.com/cgi-bin/article.cgi?file=/c

  • 5. LCH  |  July 16, 2011 at 11:47 am

    This is not unexpected. But personally, I'm not too worried. Their ballot language would be so batshit, it'll only expose their tin foil hat "facts". The only leg they may have to stand on it that the state gov. shouldn't interfere with curriculum. I don't have children in school so maybe someone can shed some light on this, but it seems like the state is already involved in curriculum development.

    ♀♀=♂♂=♀♂=∑♡

  • 6. TKM  |  July 16, 2011 at 12:56 pm

    Haven't we been here already? If they do, I expect our amazing AG, Kamala Harris, to stop this thing in it's tracks, in state or federal court. Tho objective of the law is positive, and it would be another shining example of a bunch of obsessed cry babies to show their disdain towards the gays. If they try, I will go in, at, on, down, and around on their ass.

  • 7. Kathleen  |  July 16, 2011 at 8:59 am

    Note this partial reinstatement of the stay is temporary – granted in order to give the panel time to decide on the government's emergency motion for reconsideration of the order listing the stay. In its July 14 motion, the government stated,

    "We respectfully request that the Court enter a temporary
    administrative stay of the injunction while it considers the attached
    Emergency Motion Under Circuit Rule 27-3 For Reconsideration of
    Order Lifting Stay of Worldwide Injunction."

    This is that temporary administrative stay. We should get another decision on the request for reconsideration after the July 22 deadline for the government's reply in support of reconsideration.

    And we're also waiting for LCR's response to the court's July 11 order to show cause why the case should not be dismissed as moot, due by July 21.

  • 8. Kathleen  |  July 16, 2011 at 9:14 am

    That first sentence should be "… motion for reconsideration of the order lifting the stay" (not listing it)

  • 9. Bob  |  July 16, 2011 at 9:15 am

    My gosh we're a patient, obedient bunch aren't we,,,,, while they're dickering with DADT,,, being ever so careful to not get ahead of ourselves,,,,, doing our best to maintain and uphold an unconstitutional law,,,, allowing them to continue discrimination,,,,,, I'm so ready for those service members to just bust out,,,,,,,,,,,already,,,, come on,,,,, would an unconstituional law become consitituional because it was broken?????????? and what role can the service members take in standing up for themselves?????

  • 10. MFargo  |  July 16, 2011 at 9:39 am

    Thank you, Bob, for expressing what I chose not to. While I don't see it as MY problem, I'm wondering just what yucky thing they think is going to happen if someone utters the word "gay" in the military (like that's never happened before, right?)

  • 11. Joe  |  July 16, 2011 at 2:01 pm

    "I'm so ready for those service members to just bust out,,,,,,,,,,,already,,,, come on,,,,, would an unconstituional law become consitituional because it was broken??????????"

    Ever hear of Article 15 of the UCMJ? " aka Non-Judicial Punishment? Disrespect (Article 91) can cost you 1 months pay, and reduction in rank to e-1. If you are on a ship, you can also be confined to the brig for three days on brad and water.

    Not a good idea.

  • 12. JT1962  |  July 16, 2011 at 3:45 pm

    This is just because of my off sense of humor but… being confined to the brig for three days might not be too bad depending on how hot brad is.

  • 13. AnonyGrl  |  July 17, 2011 at 12:49 am

    LOL I had the exact same thought!

  • 14. joe  |  July 17, 2011 at 12:02 pm

    obviously supposed to be bread…

  • 15. Ronnie  |  July 16, 2011 at 9:16 am

    Unacceptable………… >I …Ronnie

  • 16. Tim in Sonoma  |  July 16, 2011 at 11:09 am

    This motion reminds me of prop 8, No more gay's can marry but the couples that are already married stay married. This is really getting tiring!
    What are we, almost American's? We almost deserve some rights, some protections. Maybe?

  • 17. _BK_  |  July 16, 2011 at 11:58 am

    For now, unfortunately. 🙁

  • 18. Prop8suckss  |  July 16, 2011 at 9:39 pm

    VERY unpopular opinion, I am sure, but I think it would be much more politically beneficial for our cause/gay rights in general in terms of American Public Opinion in the Congress AND much less complicated for the military if the Court granted the emergency stay and we just add more pressure for the certification to come very quickly in the next few weeks.

  • 19. MFargo  |  July 17, 2011 at 6:50 am

    I agree. The waffling back and forth–for what reason?–gives prejudices validity. The Government and the military remind me of a child testing their limits with a parent. And everyone loses respect for the courts when they bend.

  • 20. Straight Dave  |  July 17, 2011 at 7:19 am

    I happen to disagree. While this might indeed give us more weight in terms of public opinion, it will have no real impact. The courts are not often influenced by public opinion, the military never is, and Congress no longer has any role to play at all. I think we're better off if the court draws a firm line and says no, you just can't do this anymore and we're not going to play any more games, which they pretty much have done with this recent decision to prevent people from being kicked out . That's where we are soon going to end up, and this prevents one more flip-flop.

    The court needs to hold a firm line and not give in to the Govt's tantrum. Obama, DOJ, DOD all look bad when they resist the courts orders to go where they already agreed to go, anyway. It's childish to pout and say we'll obey the law when we're damn good and ready. I think the court's current action will actually increase the likelihood of an early end to DADT by not giving the govt any wiggle room.

  • 21. Prop8suckss  |  July 17, 2011 at 5:12 pm

    I just don't think the American public or the military itself, which we need to give utmost respect to, would appreciate repeal going into effect without training, I think that it would be wiser if the court or legislature waive the transitional sixty days after certification, although I don't think that is possible…

  • 22. Bob  |  July 16, 2011 at 12:56 pm

    the Evangelical Lutheran Church of Canada, voted today to become more affirming, inclusive, and accepting of LGBT people,,,,,,,, following the example set by the American Church

  • 23. Ronnie  |  July 16, 2011 at 2:10 pm

    Active Duty Troops March In San Diego Gay Pride: VIDEO http://www.towleroad.com/2011/07/active-duty-troo

    About 200 active duty servicemen & women & veterans marched in the San Diego Pride parade waving the American & Rainbow flags.

    From ABC News:
    "Many of the active-duty troops said they were moved to come out because it is time to end the military's ban on openly gay troops…

    National Guard member Nichole Herrera, 31, said she didn't think twice about marching, even though the policy is back on the books. She said she was "choked up" several times as she walked down a main thoroughfare in San Diego, a major Navy port.

    "This is one of the proudest days in my life. It's time for it (the policy) to be gone," Herrera said. "I'm a soldier no matter what, regardless of my sexual orientation."

    Every branch of service was represented Saturday, including the Coast Guard. Marines and sailors ran out carrying their branch's flags over their heads."

    Awesome…….. <3…Ronnie:
    [youtube mVKD6NmGtn0 http://www.youtube.com/watch?v=mVKD6NmGtn0 youtube]

  • 24. JT1962  |  July 16, 2011 at 3:48 pm

    What bothers me so much is that if training has already begun and is more than halfway completed, what is the problem with ending it in every way but legalese? Are the troops who haven't been trained that imbecilic that they can't see the writing on the wall?

  • 25. MFargo  |  July 17, 2011 at 6:51 am

    (Well, I don't want to hear the answer to that question.) 🙂

  • 26. Prop8suckss  |  July 16, 2011 at 9:35 pm

    Hi, sorry, not to detract from the post, but I was just wondering what was going on with the Perry v. Schwarzenegger (or Brown I guess… whatever). I know that the Cal Supreme Court has to address the issue of standing, and if they grant standing to the defendants, will the case continue on in the Ninth Circuit Court of Appeals for them to make a judgment? If they don't grant standing, will gay couples get to marry again or will another group be able to intervene for the defendants (Kamala Harris and Jerry Brown) and complicate the matter even more?

  • 27. AnonyGrl  |  July 17, 2011 at 1:07 am

    OK… at the moment, the 9th Circuit court is waiting for the CA Supreme Court to answer a question about California state law, not to actually rule on standing, but to simply tell the 9th what California law is on the issue. Once they do, the 9th will decide whether to abide by that answer, since they are a federal, not a state court. If the 9th decides to grant the Prop 8 proponents standing, then they will also rule on the appeal. If they do not, the appeal will not be ruled on, and Judge Walker's ruling will go into effect.

    However, if that happens, it is likely that the proponents will appeal to the US Supreme Court on the standing issue, and ask for another stay while that process happens.

    As to other groups asking to intervene, the last thing I remember was that the new County Clerk of Imperial County decided to try, and I believe the 9th has said they will rule on that at the same time as the proponents standing (but it has been a while, so I might be misremembering the timing on that one). No one else should be able to get in, as it is WELL past all the deadlines.

  • 28. Tasty Salamanders  |  July 17, 2011 at 1:33 am

    I just had a thought, what exactly are the chances the Supreme Court would issue a stay in the case they were found to lack standing? I mean they aren't appealing the case there, they would be appealing their standing.
    I mean why would a stay be given to when the lost the case and can't appeal due to lack of standing and so are appealing their standing? I mean it's like the court saying: "We can't allow marriage equality while we double check that people opposed to it are allowed to fight it through us".
    I mean I would understand why they might grant a stay if they were appealing the actual case but stays are meant to prevent injury from a ruling if I understand correctly and a party needs to show injury in order to have standing to appeal, and they were rejected standing?
    Anyhow I feel like I am repeating myself in different ways so I'll stop now and hope I am understood.

  • 29. AnonyGrl  |  July 17, 2011 at 6:44 am

    I do understand what you are asking… if the appeal is about standing, not about the case itself, why would a stay be granted?

    The unfortunate reason that a stay might be granted is to "avoid any confusion" later on. That is, if the US Supreme Court were to overturn a ruling saying that the proponents had no standing and GRANT them standing, then there would be further court action required to resolve the case itself (and we know how these things can drag on). IF we then eventually lost, and there had been no stay, there would be many more couples who had married and whose marriages would then be in limbo and have to be ruled on, and that is the perceived harm the stay seeks to avoid.

    It seems wholly inadequate reasoning, but it could happen that way.

  • 30. Joe  |  July 17, 2011 at 5:52 am

    Anonygrl –

    Just to clear up a point for you. The 9th cannot grant the proponents standing.

    There are two components of federal jurisdiction, subject matter and personal.

    Before a court can render a binding judgment against a person, it must have both subject matter and personal jurisdiction. Standing is a component of subject matter jurisdiction. Subject matter jurisdiction of the federal courts is determined by Congress.

    But personal jurisdiction turns on the law of the state in which the federal court sits.

    That is why the 9th is asking the California Supreme Court about the issue of California law, to determine the personal jurisdiction component of its jurisdiction.

  • 31. MFargo  |  July 17, 2011 at 7:09 am

    But standing before the Federal Court of Appeals is not a matter for the State to decide. The rules for standing on appeal are clear, and we have every indication the SCOTUS has determined proponents of iniatives don't have standing, whether it invovles immigration or same sex marriage.

    During the hearing at the 9th, the 3 panel judges seemed annoyed that they had to man up to this issue, particularly since two of the judges had been chastised by the SCOTUS for even hearing a previous case represented by proponents (the Arizona one). I've said and still feel as though the 9th is flipping everyone off by sending this to the California Supreme Court. Saying that the case "deserves to be heard" for the voters who favored Prop 8, that's just the way the cookie crumbles. Proponents of LGBT rights have had to swallow a lot more than the Article III standing issue. Afterall, these are the Federal Courts own rules, and while I don't suggest that Article III shouldn't be tested, for the 9th to send it back to the State Supreme Court seems bizarre.

  • 32. Straight Dave  |  July 17, 2011 at 5:16 pm

    I always got the feeling that the 9th really wanted to rule on the merits (because, like many of us, they thought the merits deserved to be ruled on by someone), but couldn't manage to find that the proponents had standing. They didn't want to get smacked down by SCOTUS again, as the 2 guys on the left and center make a little private joke about it between themselves. I think they would love for CASC to bail them out and give them enough reason to find standing, so they can make the ruling they're dying to make.

    But I don't see that happening. No matter what CASC comes up with, the lack of personal harm to the proponents will stop them dead in their tracks. Or at least it should. If the 9th doesn't see it that way, I'm pretty sure SCOTUS will. if the 9th finds standing and shoots down Prop 8, and then SCOTUS overturns the standing decision, Prop 8 is still dead meat.

  • 33. MFargo  |  July 17, 2011 at 6:11 pm

    Yes, and this is just the wrong case for a broader impact. I'd like it to have national impact. I think both how the case was presented and how Judge Walker ruled was masterful. But he proponets simply don't have standing. And those who do have standing, don't want to defend Prop 8, agreeing with the Federal Court (prior to Judge Walker's ruling) that Prop 8 was unconstitutional. Delaying the inevitable, seems like delaying justice.

  • 34. AnonyGrl  |  July 17, 2011 at 7:20 am

    Joe,

    From the article you post below…
    "Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter."

    From the article on personal jurisdiction…
    "Personal jurisdiction, in the law of civil procedure in the United States, refers to a court's jurisdiction over the parties to a law suit…"

    What that seems to mean to me is that subject matter jurisdiction relates the issues over which the court has authority, and personal jurisdiction relates to the parties over whom the court has authority.

    We know that the 9th Circuit has subject matter jurisdiction, Article Three of the Constitution grants federal courts the power to decide cases involving Constitutionality of a law. We also know that they have personal jurisdiction, both parties in the case being California citizens, and the 9th Circuit Court covers California, Alaska, Hawaii, Idaho, Montana, Nevada and so on.

    Personal jurisdiction does not have anything to do with the standing issue. Standing determines whether a plaintiff, or in this case an appellant, has the right to bring a case to a court based on specific parameters involving harm to that plaintiff or appellant. Personal jurisdiction merely determines whether a court has any authority over that particular plaintiff or appellant based on geographical location.

    As you say, personal jurisdiction can be waived… but that merely means that a federal court could hear a case of a person in California against a person in Connecticut. It has nothing to do with whether those persons have met the requirements to have standing. Subject matter jurisdiction cannot be waived… a bankruptcy court cannot decide to take up the war crimes trial of a terrorist, for instance.

    So the 9th Circuit, which has both subject matter jurisdiction and personal jurisdiction, WILL decide whether the Prop 8 proponents have standing, after the California State Supreme Court advises the 9th Circuit on their interpretation of California State law on the subject. The 9th Circuit will also take into account federal law on standing (which does vary somewhat) when they make their ruling.

  • 35. Joe  |  July 17, 2011 at 9:20 am

    I agree with you that they will decide whether they HAVE standing.

    But they cannot GRANT them standing, which was my original point, and which you said above.

    If the proponents dont have standing, then the court doesn't have subject matter jurisdiction, and thus the case will be dismissed.

  • 36. Joe  |  July 17, 2011 at 5:59 am

    Oh – and while personal jurisdiction can be waived – subject matter jurisdiction cannot.
    http://en.wikipedia.org/wiki/Subject-matter_juris

  • 37. Ronnie  |  July 17, 2011 at 6:15 am

    Here is another video of the over 200 openly gay servicemen & women & veterans from every branch of our Armed Services marching in the San Diego 2011 Pride parade…….Listen to those cheers….Now THAT is how you support our troops…..

    A cheer of thanks & admiration is always better then a silent yet loud document covered with who cares, ungratefulness, & disrespect in writing.

    DO ASK, DO TEL!!!…ENFORCE REPEAL OR HEAR US YELL!!!…EQUALITY NOW!!!!! ……<3…Ronnie:
    [youtube ZdrTXBmG7qM http://www.youtube.com/watch?v=ZdrTXBmG7qM youtube]

  • 38. Sagesse  |  July 17, 2011 at 8:24 am

    Not posting this because of' the Rumour', but because of the political reaction to 'th Rumour', perception being reality, 'n all. There is also an interesting point about Christian Persecution Complex… sound familiar to anyone?

    Bachmann Rumor Grows Louder
    The chatter about Michele Bachmann’s husband's sexuality is spreading. Michelle Cottle on how it could affect a candidate whose Christian beliefs are central to her campaign.
    http://www.thedailybeast.com/articles/2011/07/16/

  • 39. Ronnie  |  July 17, 2011 at 8:49 am

    More video of the service men & women & veterans from the the San Diego 2011 Pride parade…..<3…Ronnie:
    [youtube e9FQI3m2e1g http://www.youtube.com/watch?v=e9FQI3m2e1g youtube]

  • 40. Sagesse  |  July 18, 2011 at 5:16 am

    New York Census shows 40 percent jump in same-sex couples
    http://www.keennewsservice.com/2011/07/17/new-yor

    Hope this new data is brought up by witnesses in the Senate DOMA hearings.

  • 41. Eric  |  July 18, 2011 at 1:38 pm

    I'm not donating any money to Obama, until Holder is gone. I'm tired of the DoJ playing both sides when it comes to my rights.

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