October 25, 2010 at 4:32 pm EDT | by Chris Johnson
Gay groups call on court to lift stay on ‘Don’t Ask’ injunction

LGBT groups working to end “Don’t Ask, Don’t Tell” were to set to file briefs with a U.S. appellate court on Monday calling on judges to allow an injunction against enforcing the law to continue.

Log Cabin Republicans was due on Monday to submit a brief to the U.S. Ninth Circuit Court of Appeals in response to a temporary stay the court issued last week. The stay was on an injunction that a lower court issued stopping the enforcement of “Don’t Ask, Don’t Tell.”

The temporary stay means the Defense Department is free to enforce “Don’t Ask, Don’t Tell” and continue to discharge gay, lesbian and bisexual service members until the court makes a decsion on whether or not to continue the stay pending appeal.

In its 22-page brief, Log Cabin argues that the Ninth Circuit should lift its stay on the “Don’t Ask, Don’t Tell” injunction because “American citizens’ Constitutional rights are violated” under the enforcement of the law.

“The emergency stay of injunction that the government requests would perpetuate this unconstitutional state of affairs with no countervailing benefit to the government that outweighs the deprivation of rights such a stay would entail,” Log Cabin states. “The motion does not meet any of the factors for a stay pending appeal, and it should be denied.”

Download a copy of Log Cabin’s brief here.

It’s unclear when the appellate court will make a decision on whether it will make its stay on the injunction permanent as it hears the case. The U.S. Justice Department appealed the case of Log Cabin v. United States to the Ninth Circuit after U.S. District Judge Virginia Phillips struck down the law in her ruling.

Joining Log Cabin Republicans on Monday were several LGBT groups filing friend-of-the-court briefs, including Servicemembers Legal Defense Network, Lambda Legal and Servicemembers United.

In its 16-page brief, SLDN argues that the Ninth Circuit should lift its stay on the “Don’t Ask, Don’t Tell” injunction because continued enforcement of the law is causing “irreparable harm” to gay, lesbian and bisexual service members.

“If the District Court’s judgment is stayed, tens of thousands of interested individuals, namely valuable gay and lesbian members of the armed forces, will continue to be at risk of discharge, and this constitutes substantial and irreparable harm,” SLDN writes. “[Don’t Ask, Don’t Tell’s] violation of the Fifth and First Amendments alone represents irreparable injury.”

Also in its friend-of-the-court brief, SLDN contends that the stay should be lifted because of the public interest in having “a military that conducts itself in accordance with the Constitution.”

SLDN also says the continued enforcement of “Don’t Ask, Don’t Tell” would put in jeopardy the careers of gay, lesbian and bisexual service members whom the organization represents.

One such person noted in the brief is Lt. Col. Victor Fehrenbach, an Air Force pilot who’s served in the U.S. military for 19 years and is now facing discharge under “Don’t Ask, Don’t Tell.”

“If he is discharged as a result of his private, constitutionally protected conduct, Lt. Col. Fehrenbach will lose his job, income, right to a pension, health and life insurance, and all other benefits associated with being an Air Force officer,” SLDN writes. “Lt. Col. Fehrenbach will suffer a stigma from being discharged involuntarily from the military for violating Air Force regulations.”

Download a copy of SLDN’s brief here.

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

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