November 1, 2010 at 10:20 pm EDT | by Chris Johnson
Appeals court extends stay on ‘Don’t Ask’ injunction

A U.S. appellate court is allowing for the continued enforcement of “Don’t Ask, Don’t Tell” as judges consider a legal challenge against the law.

On Monday, the U.S Ninth Circuit Court of Appeals issued a decision to extend a stay on an injunction that would have blocked enforcement of the military’s gay ban. The injunction, issued last month by a lower court, temporarily stopped the enforcement “Don’t Ask, Don’t Tell.”

But in a 2-1 split decision, the majority on the three-judge panel write that the continued enforcement of “Don’t Ask, Don’t Tell” is necessary because the U.S. government has convincing arguments that an injunction will result in “immediate harm and precipitous injury.”

“We also conclude that the public interest in ensuring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” the judges write.

The majority decision, written by U.S. Appellate Judges Diarmuid O’Scannlain and Stephen Trott, means that discharges can continue under “Don’t Ask, Don’t Tell” and military recruiters can turn away openly gay Americans seeking to join the armed forces.

In his dissent, U.S. Appellate Judge William Fletcher says he favors a partial stay, but the part of the injunction blocking the discharges of gay service members should remain in place.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher writes.

R. Clarke Cooper, executive director of Log Cabin Republicans, which filed the lawsuit in 2004, said he’s “disappointed” the court will allow the continued enforcement of “Don’t Ask, Don’t Tell.”

“Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights,” Cooper said.

Cooper urged Obama to use his stop-loss authority to prevent the further discharges of gay service members as the Ninth Circuit hears the case.

Joe Solmonese, president of the Human Rights Campaign, also expressed disappointment with the Ninth Circuit’s decision.

“Every day that ‘Don’t Ask, Don’t Tell’ is in force, Americans are losing out on the best and brightest service members defending our country,” Solmonese said. “For the good of our national security, the endless legal wrangling and political posturing has to stop.”

Solmonese called on President Obama and Congress to repeal “Don’t Ask, Don’t Tell” legislatively by the end of the year.

The Obama administration brought the case of Log Cabin v. United States to the Ninth Circuit after U.S. District Judge Virginia Phillips last month issued an injunction against the enforcement of “Don’t Ask, Don’t Tell.”

The U.S. government argued the court should place a stay on the injunction because, among other reasons, the U.S. military needs to devise training and guidance to those affected by ending “Don’t Ask, Don’t Tell.”

The Ninth Circuit’s decision on Monday affirms a temporary stay the appellate court had already issued as it heard arguments over whether to keep the injunction in place.

Alex Nicholson, executive director of Servicemembers United and sole named plaintiff in the lawsuit, called the Ninth Circuit’s decision “really unfortunate” and said the U.S. goverment “tricked” the judges into issuing a stay on the injunction.

Nicholson said none of the “enormous consequences” that Defense Secretary Robert Gates had previously expressed concern about with respect to ending “Don’t Ask, Don’t Tell” had to pass when the law was enjoined under the injunction.

“It is concerning that the government can so blatantly pull one over on an appeals court, and it is equally frustrating that such a distinguished court would allow itself to be fooled so obviously and so publicly in the name of ‘deference,'” Nicholson said. “Abdication is more like it.”

Legal experts are expecting the Ninth Circuit to make a decision in the case next year after the court hears oral arguments.

Download a copy of the decision 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

  • This makes me want to stay home and not vote. GOOD JOB OBAMA!!! CONGRATULATIONS!!! Your DOJ and Administration is one tough group. Now, how do I go vote AND show my disgust for your inaction at the same time? Ok, I will hold my nose and go vote for my local reps and issues etc. But I do not like the fact that you all have a (D) after your name. Your party affiliation is no longer appreciated.

  • With a Democratic majority in the House and Senate and a Democratic President– does a completely Democratic-led government equal full equality under the law for LGBT people in the United States of America? Simple answer: NO, it does not. Isn’t that just a little bit unnerving, HRC? Why should I bother to give any more money and time to you, and also to the Democratic Party? For laughs? For fun? Will you both be reimbursing me for every last penny lost to inequities regarding social security, taxes, health care and thousands more issues? I didn’t think so……

  • Look at who voted for repeal and who voted against repeal. Count the votes. Hold those who voted against repeal accountable, and reward those who voted for repeal.

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