Today was the day the Ninth Circuit had requested that the plaintiffs in Log Cabin Republicans vs. United States of America (the case that declared Don't Ask, Don't Tell unconstitutional) submit their brief. It was to explain why a stay (that is, a temporary suspension) of Judge Phillips' injunction ordering the Department of Defense to cease and desist applying DADT worldwide was inappropriate. And today the attorneys for Log Cabin Republicans, the plaintiffs, did just that.
A trio of Ninth Circuit judges will likely rule in the very near future on whether to issue a stay or uphold Judge Phillips' order. If they do issue a stay, Don't Ask, Don't Tell will remain in effect until either a) it is repealed by Congress or a combination of Congressional and Executive actions, or b) the Ninth Circuit conducts an appeals hearing and, perchance, decides for itself the law is unconstitutional. That would not happen, at the earliest, until Spring 2011 and likely later.
If they do uphold Judge Phillips' order, everyone expects the Justice Department to seek a stay from the Supreme Court in the persona of Justice Kennedy, who is responsible for such for the Ninth Circuit. We could be in for another round of "on-again, off-again", although most people expect the Ninth Circuit to issue a permanent stay.
A few of the issues the brief addresses are:
-- Would upholding the injunction cause significant, immediate harm to the US military?
-- Did Judge Phillips' have the authority to issue a worldwide injunction, and would its continued existence cause irreparable injury ?
The government has repeatedly argued that it would, despite the fact it presented no such evidence at trial. Further, there has been no evidence of harm to the military in the time period during which the Department of Defense has obeyed Phillips' order -- and, as far as I can tell, the DoD's directive to it members to obey the injunction has not yet been countermanded, despite the Ninth Circuit's temporary stay late last week.
LCR responds:
... the injunction does not require the military to take any affirmative measures: it does not order the military to redesign its barracks, to retool its pay scales or benefits, to re-ordain its chaplains, to rewrite its already extensive anti-harassment or "dignity and respect" rules, or anything else. Nor does it prevent the military from undertaking the acts appellants now claim it must do if DADT is enjoined -- revising policies, preparing educational and training materials, and the like. The district court's injunction requires only one thing: to cease investigating and discharging honorable, patriotic, brave fighting men and women for reasons unrelated to their performance and military ability.
With the injunction in place, nothing will change with regard to the composition of the military, the training, promotion, demotion, and deployment of servicemembers, the mission and operations of the armed forces, or anything else that pertains to the important governmental interest that the military serves...
The supposed "injury" to the military that the government claims would result fro m the district court's injunction is, by the government's own account, entirely a matter of rewriting handbooks and personnel manuals, developing training and "education" materials, reassuring serving personnel that their "views, concerns, and perspectives" are valued, and the like. These activities are not "irreparable injury" of the type that the test for a stay contemplates.
The government has argued that the scope of the injunction should have been limited either in geographic scope, or with respect to the people it covered, or both, noting that such a worldwide injunction causes the government the kind of irreparable injury that is routinely the basis for stays pending appeals. Judge Phillips rejected both claims, noting that members of the Armed Services worldwide would, as per her initial decision, have their First and Fifth Amendment rights violated should a stay be granted.
LCR reiterates Judge Phillips' concern:
it is firmly established that deprivation of Constitutional rights is ipso facto irreparable injury. "[C]onstitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm." Nelson II, 530 F.3d at 882; Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"). Remarkably, the government's motion does not even address at all the issue of Constitutional injury to Log Cabin and to homosexual servicemembers...
...the ill effects to homosexual servicemembers of the inverse scenario -- disruption and termination of their military careers, with merely the hollow satisfaction of abstract vindication when the district court's judgment is ultimately upheld -- are irreparable. These individuals may not be reinstated, even if reinstatement could make them whole for the deprivation of Constitutional rights they would have suffered. The concrete injury to them from an ill-advised stay of the injunction far outweighs the theoretical harm to the government that might result from maintaining the injunction in place during the appeal process, and tips the balance of hardships "sharply" in favor of appellee.
Footnote: DADT is that rara avis, a statute that goes beyond merely not protecting individuals against discrimination on some basis, but actually mandates discrimination on that basis. The government does not even suggest that the hardships could be brought closer into balance by, at a minimum, a moratorium on investigations and discharges while its appeal proceeds.
It's a strong argument. Will it have any effect on the Ninth Circuit Court judges? We have an unfortunate hint of that from the brief's conclusion:
For all the reasons set forth above, appellants’ emergency motion for stay
should be denied. If a stay is granted, however, this appeal should be expedited.
For more discussion of why a stay is unlikely, see this diary.
For a more extensive discussion of the brief, see this Prop 8 Trial Tracker article