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BREAKING: 9th Circuit stays DADT injunction

By Eden James

Bad news, but not unexpected. The U.S. 9th Circuit Court of Appeals has issued a temporary stay of the DADT injunction by Judge Phillips in the Log Cabin Republicans v. United States case.

The 3-judge panel of Judges O’Scannlain, Trott and W. Fletcher wrote:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

Chris Geidner at Metro Weekly has the scoop on what it means:

This does not immediately change the military’s policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, “the Department of Defense will abide by the terms of the injunction” and stated that “additional guidance” would come if a stay is granted.

This is not, however, a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide — sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request — whether to issue a stay pending the outcome of the appeal.

If a stay is granted pending the appeal, though, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

And Kathleen-on-the-spot has the Scribd:

[scribd id=39778102 key=key-16xteqe2w8q7f5kg9i61 mode=list]

UPDATE: Servicemembers United issued the following statement:

“While we are obviously disappointed that the injunction was temporarily stayed, we hope that the Ninth Circuit will recognize the inherent contradiction in the government’s arguments for a longer stay in light of eight full days of non-enforcement with no ‘enormous consequences,'” said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “An objective look at the evidence before the court clearly indicates that ending ‘Don’t Ask, Don’t Tell’ would not harm military readiness, but would rather enhance it.”

UPDATE: Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“This interim temporary stay means that ‘Don’t Ask, Don’t Tell’ is once again on the books, and is likely to be enforced by the Defense Department. Gay and lesbian service members deserve better treatment than they are getting with this ruling. We now must look to the Senate next month in the lame duck session to bring about the swift certainty needed here and to repeal this unjust law that serves no useful purpose.”

123 Comments October 20, 2010

BREAKING: DOJ appeals DADT stay request to the 9th Circuit

By Eden James

The Department of Justice is asking the U.S. 9th Circuit Court of Appeals for an emergency stay of the ruling by Judge Phillips halting enforcement of DADT.

Not entirely surprising, of course. Chris Geidner has more:

In its filing, DOJ attorneys state:

“We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.”

The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.

Finally, DOJ argues that the remedy — the worldwide injunction against all enforcement of DADT — is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.

Kathleen has the Scribd:

[scribd id=39750484 key=key-2bhquxefkme30gmbcxji mode=list]

More to come…

UPDATE: Check out this first-hand account from the New Civil Rights Movement of Lt. Dan Choi’s experience yesterday as he tried to reenlist in the Army. Some good images of the media horde that assembled as well as Dan outside the Times Square recruitment center:

The twenty-nine year old had announced his intention to re-enlist, (technically, to be re-instated,) this afternoon, via Twitter. “I’m gonna try to enlist in the Marines today,” he tweeted. That brought throngs of news media and bloggers (yours, truly, had received word as well,) to Times Square.

Military recruiters, busy with another young man enlisting, kept the former Lieutenant waiting at the door for fourteen minutes. Upon seeing Choi, one recruiter picked up the phone, and many of us assumed he was calling his superiors for direction on what to do, given the special circumstances. I confess, we were surprised they weren’t prepared.

45 Comments October 20, 2010


By Eden James

When the breaking news rains, it comes down like a hurricane. And, today, it’s all been good news.

Judge Virginia Phillips just ruled against the Department of Justice, denying its request for a stay of injunction in Log Cabin Republicans vs United States of America.

Kathleen, as usual, is on top of it with the Scribd doc:

[scribd id=39699756 key=key-1gkjq6qivj3i55ir41do mode=list]

Clarke Cooper, Executive Director of Log Cabin Republicans:

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen. As this past week has shown, our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom. As Commander in Chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security. The president has said that ‘Don’t Ask, Don’t Tell’ will end on his watch, but is currently standing in the way of its demise. Log Cabin Republicans will continue to fight this policy no matter how many obstacles he puts in the way.”

Dan Woods, White & Case:

“We applaud Judge Phillips’s ruling denying the government’s request for a stay of injunction, as it brings us one step closer toward ending once and for all this unconstitutional policy that President Obama and Congress seem incapable or unwilling to end themselves,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans in Log Cabin Republicans vs United States of America. “Meanwhile, homosexual servicemembers are fighting and dying today in two wars for their fellow Americans’ constitutional rights, while their own constitutional rights are being held hostage to an uncertain bureaucratic process that seems more interested in beancounting the trouble they would be put to from modifying their training materials than in protecting these servicemembers’ civil rights.”

Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

UPDATE: The Boston Herald with word from the DoJ and Pentagon:

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

71 Comments October 19, 2010


By Eden James

The AP broke the story a few hours ago:

WASHINGTON – A Pentagon spokeswoman says recruiters have been told that they must accept gay applicants, following a federal court decision striking down the ban on gays serving openly in the military.

Spokeswoman Cynthia Smith said Tuesday that top-level guidance has been issued to recruiting commands informing them that the military’s “don’t ask, don’t tell” rule has been suspended for now. Recruiters also have been told to inform potential recruits that the moratorium could be reversed at any point.

Chris Geidner at Metro Weekly added some more detail:

The statement provided by Smith in an email to Metro Weekly, and first reported by the Associated Press, comes on the heel of a report in The New York Times that Omar Lopez, who is an out gay man, was turned away at a recruiting station in Texas because of his sexual orientation despite the judge’s injunction resulting from the Log Cabin Republicans v. United States case.

Smith also wrote that “[r]ecruiters are reminded to set the applicants’ expectations by informing them that a reversal in the court’s decision of the “Don’t Ask, Don’t Tell” law/policy may occur.”

The Washington Post adds some background to the events that led up to today’s news:

The guidance issued to military recruits is consistent with the Defense Department’s plans to abide by a federal judge’s injunction on the 17-year ban on gays in the military. The Pentagon advised senior military leaders late last week not to ask service members or military applicants about their sexual orientation, to treat the rank and file with dignity and respect and maintain good order and discipline.

Dan Choi’s response? Time to re-enlist (and test the system, one assumes).

Here’s Dan’s first announcement from his Twitter account account, where he is adding live updates:

“I’m headed to the Times Square Recruiting Station. #DADT”

Check out a pic of Dan in Times Square here.

UPDATE: Chris Geidner adds an update of his own:

[UPDATE: Perhaps the most interesting bit of information regarding today’s announcement came from The Atlantic’s Marc Ambinder, who noted, “Pentagon’s general counsel made the decision.” The general counsel is Jeh Johnson. Johnson is the co-chair of the Pentagon working group charged with implementing repeal. Assuming Ambinder’s reporting to be accurate, then the co-chair of the working group made the decision that, with guidance to recruiters, the change in recruiting policy could be made immediately.]

UPDATE: Army just accepted the re-enlistment of Lt. Dan Choi!

BoyCulture has the goods.

Here’s are YouTubes of interviews with Dan in Times Square before and after he reenlisted:

UPDATE: Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up. The ‘Don’t Ask, Don’t Tell’ law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

88 Comments October 19, 2010

BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision

By Eden James

A few minutes ago, the American Foundation for Equal Rights filed its response brief to the U.S. 9th Circuit Court of Appeals just before the midnight deadline.

Kathleen, as usual, has Scribd the document for the P8TT community:

[scribd id=39644313 key=key-1858aesby3kyks1wozuj mode=list]

AFER has also posted the brief on its web site at:

Here is the press statement from AFER that accompanied the brief:

OCTOBER 18, 2010 — The plaintiffs in the landmark Perry v. Schwarzenegger case that overturned Proposition 8 filed their brief with the 9th Circuit Court of Appeals today, reiterating the clear unconstitutionality of the initiative that led to its being struck down by a federal district court after an exhaustive trial comprising overwhelming legal arguments, expert witnesses and first-hand testimony.

“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as ‘persons’ under the 14th Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution,” attorneys Theodore B. Olson and David Boies wrote in their filing.

“Our Constitution requires the government to treat every American equally under the law,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Only full federal marriage equality would fulfill the requirements of our Constitution. That is why we are pressing this case through the Supreme Court.”

I’m sure Trial Trackers will enjoy digesting this document tonight and in the morning. Please let us know what you think in the comments!

UPDATE: Here is the full introduction to the main case brief, as just posted on AFER’s web site:


This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and equality, the most bedrock principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment.

Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

The unmistakable, undeniable purpose and effect of Proposition 8 is to select gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are different, that their loving and committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” After an expensive, demeaning campaign in which voters were constantly warned to vote “Yes on 8” to “protect our children”—principally from the notion that gay men and lesbians were persons entitled to equal dignity and respect—Proposition 8 passed with a 52% majority and Proponents’ stigmatization of gay and lesbian relationships as distinctly second-class thus became the official constitutional position of the State of California.

Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long-passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment—even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful. Proponents’ own expert acknowledged that the principle of “equal human dignity must apply to gay and lesbian persons.” SER 287. “In respect of civil rights, all citizens are equal before the law.” Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, “[p]ersons in a homosexual relationship” enjoy the “constitutional protection to personal decisions relating to marriage.” Lawrence v. Texas, 539 U.S. 558, 574 (2003). The district court readily and correctly recognized that Proposition 8 and its demeaning of the personal autonomy of gay men and lesbians with respect to marriage was of a piece with the anti-miscegenation statutes struck down years ago in Loving v. Virginia, 388 U.S. 1 (1967). And just as the Supreme Court properly vindicated those foundational principles of freedom and equality in Loving, so, too, does the decision of the district court invalidating Proposition 8 make this nation, in the words of Proponents’ expert, “more American . . . than we were on the day before.” SER 287.

From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a state may “draw a line around” its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits to heterosexual persons.

Application of Proponents’ version of rational basis review to Proposition 8 would be profoundly unjust and absolutely incompatible with our Nation’s tradition of equality as articulated in numerous decisions of the Supreme Court. Categorical exclusions from “the most important relation in life” cannot possibly be equated with zoning or economic regulations that adjust in nice gradations the economic benefits and burdens of life in American society. And a person’s sexual orientation is not a species of conduct that may readily be adjusted to conform to the government’s changing priorities; the court below, based on ample expert analysis, found that a gay man or lesbian cannot simply choose to be attracted to the opposite sex and thereby avoid the sting of Proposition 8, to say nothing of the other acts of discrimination and violence frequently directed at gay and lesbian persons. Heightened scrutiny thus properly applies to laws targeting persons based on their sexual orientation and gender, just as it does to laws classifying persons on the basis of race, ancestry, sex, illegitimacy, alienage, and religion.

Even under Proponents’ preferred standard of review, however, Proposition 8 fails. There is no legitimate interest that is even remotely furthered by Proposition 8’s arbitrary exclusion of gay men and lesbians from the institution of marriage. Indeed, Proponents can offer nothing but unproven assertions and tautologies.

Proponents argue that stripping gay men and lesbians of their right to marry advances governmental interests in “responsible procreation” and preventing the “deinstitutionalization” of marriage—two phrases that, tellingly, the Yes on 8 campaign never saw fit to urge upon California voters. To determine whether these rationales and others proffered from time to time by Proponents legitimately could justify Proposition 8, the district court held a trial at which it considered evidence and expert testimony. Plaintiffs presented 17 witnesses, including nine leading experts in history, political science, psychology, and economics, and hundreds of trial exhibits, including more than 250 exhibits related to messages transmitted to voters as part of the Proposition 8 campaign.

Proponents, on the other hand, denounced from the start the notion that their assertions might be subjected to adversarial testing, resisting the very idea of a trial, and ultimately insisted their assertions did not need to be supported by any evidence whatsoever. In the end, they presented just two witnesses, including a supposed expert on marriage who derived the substance of his opinions concerning the harms same-sex marriage might cause to “traditional” marriage from a “thought experiment” in which he essentially did little more than chronicle the responses provided by an unscientifically selected audience. ER 81. When asked by the district court to identify what harms would befall opposite-sex married couples if gay and lesbian couples could marry, Proponents’ counsel candidly acknowledged, “I don’t know.” ER 44.

Based on that factual record—undoubtedly the most detailed ever assembled in a case challenging legislation targeting gay and lesbian persons—the district court issued a 136-page opinion that meticulously examined each of the parties’ factual assertions and the evidence supporting those assertions. The district court found that “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs,” and concluded that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” ER 46. In light of Proponents’ inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process and Equal Protection Clauses.

Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court. The tactic is unfortunate, unbecoming and unavailing. The governmental interests Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrates, there is no good reason—indeed, not even a rational basis—for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life.

The district court’s judgment is predicated squarely on the fundamental principles established by the Supreme Court in Loving and its other decisions explaining the constitutional meaning of marriage, as well the Court’s decisions in Lawrence and Romer, which together make clear that Proposition 8 flatly violates the constitutional commands of due process and equal protection of the laws. That judgment—and the injunction against the enforcement of Proposition 8 that necessarily must follow—should be affirmed.

UPDATE: AFER also filed a brief in the case of the appeal filed by Imperial County. Check it out (h/t Kathleen):

[scribd id=39643469 key=key-1v3da07pr3b99ot39wd6 mode=list]

88 Comments October 18, 2010

BREAKING: City and County of San Francisco files response brief to 9th Circuit Court of Appeals

By Eden James

The City and County of San Francisco, an official plaintiff in the Prop 8 case, just filed its response brief to the U.S. 9th Circuit Court of Appeals, per today’s deadline set by the court. Here is the document, as Scribd by Kathleen:

[scribd id=39628820 key=key-1k3ye03b9cqqh74he2fl mode=list]

The American Foundation for Equal Rights is expected to file their response brief before today’s deadline as well.

Trial Trackers, please read through the City’s brief and let us know what you think in the comments. Any nuggets that stand out and are worth greater attention?

90 Comments October 18, 2010

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