The Ninth Circuit Court of Appeals just reinstituted, in part, its stay of Judge Phillips' injunction prohibiting the Defense Department from enforcing Don't Ask, Don't Tell.
But here is what the order they issued continues to forbid:
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.
Presumably this means that no openly LGB citizen is allowed to join the military, but that no one can be thrown out of the military using the DADT law as a basis. Nor can they be investigated for the nonce. So if you do join the military, and then declare that you are gay, you'd be safe (until the next court order).
So it's half a loaf.
With the DoJ and the Administration be satisfied or will they continue to appeal?
This court has received appellants’ corrected emergency motion for reconsideration of the July 6, 2011, order lifting the November 1, 2010, stay of the district court’s judgment pending appeal. In the motion for reconsideration, appellants provide considerably more detailed information concerning the implementation of the Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-322, 124 Stat. 3516 (Dec. 22, 2010), thanthey did in their May 20, 2011, opposition to the motion to lift the stay.
This information includes the declaration of 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; the representation that only one service member 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. Appellants acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act.
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.
No later than 5:00 p.m. PDT on July 18, 2011, appellants shall supplement their motion for reconsideration to address why they did not present in their May 20, 2011, opposition to the motion to lift the stay the detailed information now presented in the motion for reconsideration. Appellee may file an opposition to the motion for reconsideration by 5:00 p.m. PDT on July 21, 2011. Appellants may file a reply in support of the motion by 12:00 p.m. PDT on July 22, 2011.
Briefing is completed
Update. Zounds, I just saw this.
In the request for the stay to be put back in the place, the DoJ wrote:
It is anticipated that certification will be presented to Defense Department senior leadership by the end of July or early in August.
But in their order today, the Ninth Circuit justices wrote:
... 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.
But no such certification was made!!! How could the Ninth Circuit have been so careless?
Today's order from the Ninth Circuit rather modestly states that it reinstates the stay of the injunction against enforcement of Don't Ask, Don't Tell "in all respects except one." The order goes on to provide that the injunction remains in effect "insofar as it enjoins [the government] from investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell Policy." In other words, all that today's order does is allow the military to once again stop accepting or processing applications from openly lesbian, gay or bisexual people, for now. Discharges, discharge proceedings, and investigations remain on hold.
The order reflects that the judges are upset that the government provided "considerably more detailed information concerning the implementation of the Don't Ask, Don't Tell Repeal Act ... than [it] did in [its prior] opposition to the motion to lift the stay" and orders the government to supplement its motion for reconsideration by 5 p.m. this Monday "to address why [it] did not present in [its] May 20, 2011 opposition to lift the stay the detailed information now presented in the motion for reconsideration." In addition, the order gives Log Cabin Republicans until 5 p.m. on July 21st to respond to the motion for reconsideration, but then gives the government only until noon the next day to reply. (Can we say "annoyed?")
This whiplash is surely confusing for many people. The administration needs to stop saying that certification under the Don't Ask, Don't Tell Repeal Act is coming soon and just issue it. But, even then, the actual end of the policy won't happen for 60 days after certification. The government has failed to show any reason why the policy cannot be halted immediately other than to claim that the military will respond better if it is not having to do so pursuant to a court order. Imagine if other people ordered by courts to stop violating people's rights similarly argued, don't issue an injunction, just let me fix the problem myself, on my own timetable, while I continue breaking the law!
Oral argument of the appeal has now been set for September 1st, in Pasadena.
Jon W. Davidson
Update A solid article from Keen, including this quote:
The temporary re-instatement of the stay continues the extraordinary state of flux in the status of the federal law banning openly gay people from the military.