“Don’t Ask, Don’t Tell” is here, through Spring, at least. The Ninth Circuit Court of Appeals has just over-ruled a lower court’s decision that the government stop all “Don’t Ask, Don’t Tell” related activities, effectively placing “Don’t Ask, Don’t Tell” back into law until it rules on the actual ruling. This tempory stay against the lower court’s injunction against any “Don’t Ask, Don’t Tell” investigations and discharges is a setback for the LGBT community and civil rights activists. You’ll remember the Ninth Circuit gave the government a temporary emergency stay while it reviewed the implications of the case. This extends that stay while it reviews the actual case.
Chris Geidner at Metroweekly reports, “The practical effect of the ruling means that — absent congressional or executive action — DADT will remain in effect through at least Spring 2011.
“In addition to the fact that this case raises ‘serious legal questions,'” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”
“The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”
Here are a few responses:
Servicemembers Legal Defense Network (SLDN): “Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame duck session to end this confusion and bring about the finality that is needed. We continue to warn service members that it is unsafe to come out as long as this law remains on the books.â€
Dan Woods, White & Case: “The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,†said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the US Supreme Court.”
R. Clarke Cooper, Executive Director, Log Cabin Republicans: “Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,†said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.â€
Lambda Legal: “Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate.  But it’s important to remember what today’s ruling was not:  a consideration of the merits of the case. That remains for another day.
“Each day that ‘Don’t Ask, Don’t Tell’ remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the
President, who can issue a stop-loss order to put an immediate end to discharges under ‘Don’t Ask, Don’t Tell.'”