Supreme Court asked to lift stay on ‘Don’t Ask’ injunction

Plaintiffs in litigation challenging “Don’t Ask, Don’t Tell” on Friday asked the U.S. Supreme Court to lift a stay issued by an appellate court allowing continued enforcement of the military’s gay ban.

Lawyers representing Log Cabin Republicans, which filed the lawsuit against “Don’t Ask, Don’t Tell” in 2004, requested that the high court vacate a stay issued by the U.S. Ninth Circuit Court of Appeals. The application argues continued enforcement of the law would harm gay, lesbian and bisexual service members.

“Unless the court of appeals’ stay is vacated, the respondents will be free to continue to investigate and discharge American servicemembers for no reason other than their homosexuality, in violation of their due process and First Amendment rights,” the application states.

The application was sent to U.S. Associate Justice Anthony Kennedy, who’s the circuit justice for the Ninth Circuit. The Log Cabin litigation is pending before the appellate court in that circuit.

In a statement, Dan Woods, partner at White & Case LLP, which is representing Log Cabin, emphasized that the stay is “arbitrary” and said the Supreme Court should vacate the order immediately.

“We continue to look forward to the day when all Americans can serve in our military without regard to their sexual orientation,” Woods said.

R. Clarke Cooper, executive director of Log Cabin Republicans, criticized the U.S. Justice Department for requesting the stay with the Ninth Circuit and said the action drove his organization to pursue the matter with the high court.

“It is unfortunate the Obama Justice Department has forced the Log Cabin Republicans to go to the Supreme Court,” Cooper said.

Late last month, the Ninth Circuit decided to stay an injunction preventing the enforcement of “Don’t Ask, Don’t Tell” issued by U.S. District Court Judge Virginia Phillips after he ruling striking down the law. The application filed by Log Cabin on Friday maintains that the decision to stay the injunction was an “abuse of discretion.”

Among other things, the application states that the stay order ignored controlling precedent, sidestepped the requirement that respondents show a likelihood of success and “gave no consideration whatsoever” to the injury that would befall applicants because of the stay.

“Any alleged harms to the government are entirely bureaucratic, procedural, and transitory in nature, and are sharply outweighed by the substantial constitutional injury that servicemembers will sustain from a stay of the district court’s judgment,” the application states.

Log Cabin lawyers argue that at a minimum, the Supreme Court should halt discharges of gay service members currently serving in the U.S. military as the Ninth Circuit hears the litigation. Such an order would be similar to what U.S. Appellate Judge William Fletcher, who serves on the Ninth Circuit, thought was appropriate in his dissenting opinion on the stay.

In a Q&A attached to his statement, Woods said how long the application review would take is up to the court and that justices may give the U.S. government an opportunity to respond.

Additionally, Woods said it’s up to Kennedy to determine whether the entire Supreme Court will be involved in the decision on vacating the order. Woods said Kennedy may decide for himself of refer the application to the entire Supreme Court.

If the high court vacates the stay, Woods said “Don’t Ask, Don’t Tell” is dead for the time that the Ninth Circuit considers the lawsuit. But if the high court upholds the Ninth Circuit’s decision, Woods said plaintiffs would next move in the appellate court to expedite the litigation.

Download the application to vacate here.

UPDATE: Kennedy has directed the U.S. government to reply to Log Cabin’s request to vacate the stay by Wednesday at 5 pm, according to sources familiar with the lawsuit.