November 5, 2010 | by Chris Johnson
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.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

5 Comments
  • “Prop. 200”, “House Bill 2013″ and “SB1070″

    0 = Arizona
    3 = USA/ Our Constitution/ We the People of the United States

    We are a country that is ruled by the Constitution (with all Amendments), and the Declaration of Independence, not by the majority of the day. When the uneducated do not know the principles in these documents, therein lays the problem in losing, so no one should be surprised when the dullards lose in court after being smartly challenged.

    Last month of October 2010, our Ninth Circuit Court of Appeals overturned Arizona’s requirement that people show proof of citizenship to register to vote or the 2004, “Prop. 200”. In the month of July 2010, our U.S. Federal courts have found the so called State of Arizona hate filled legislation namely “House Bill 2013″ and “SB1070″ Un-constitution (So much for the intellect of Jan Brewer, “Did you read the bills you signed?”). But we all know that they will go crying to the Supreme Court of the United States, please, please, please go. We will fight you in Arizona, any other state, and yes in Washington DC. We will not tire, we will not be silent and we will persevere, I promise you.

    In my opinion the Republican Party has been taken over the most extreme of clans; the Baggers, Birthers and Blowhards (people who love to push their beliefs and hate on others while trying to take away the rights of those they just hate) and that’s who they need to extract from their party if they real want to win in November. Good Luck, because as they said in WACO, “We Ain’t Coming Out”.

    I know the proponents of this law say that the majority approves of these laws, but the majority is not always right. Would women or non-whites have the vote if we listen to the majority of the day, would the non-whites have equal rights (and equal access to churches, housing, restaurants, hotels, retail stores, schools, colleges and yes water fountains) if we listen to the majority of the day? We all know the answer, a resounding, NO! You were all wrong then and you are wrong now!

    I hope that every American, regardless of where he lives, will stop and examine his conscience about this and other related incidents. This Nation was founded by people of many nations and backgrounds. It was founded on the principle that all people are created equal, and that the rights of every person are diminished when the rights of one person are threatened. All of us ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated, but this is not the case.

    Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. In a time of domestic crisis people of good will and generosity should be able to unite regardless of party or politics and do what is right, not what is just popular with the majority. Some people comprehend discrimination by never have experiencing it in their lives, but the majority will only understand after it happens to them.

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