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

Plaintiffs call appellate court’s order an ‘abuse of discretion’

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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.

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District of Columbia

Trial for man charged with assaulting gay men in D.C. park postponed for third time

Indictment says attacker squirted victims with pepper spray

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Meridian Hill Park (Washington Blade photo by Michael Key)

The trial for a 50-year-old man who was arrested July 14, 2022, on charges that he allegedly assaulted five men he believed to be gay at D.C.’s Meridian Hill Park between 2018 and 2021 was postponed for the third time last month and has now been rescheduled for Aug. 19 of this year.   

The arrest of Michael Thomas Pruden came two weeks after a federal grand jury handed down an indictment on June 29, 2022, charging him with five counts of assault on federal park land, one count of impersonating a federal officer and a hate crime designation alleging that he assaulted four of the men because of their perceived sexual orientation. 

Prosecutors with the Office of the U.S. Attorney for D.C. filed a motion in court on Jan. 10 of this year opposing a request by Pruden’s defense attorney to postpone the most recent prior trial date set for Feb. 26. 

“Following indictment in June 2022, the defendant has delayed the trial in this case several times, including by firing two prior attorneys,” the prosecutors’ motion states. “While the government has not previously objected to any continuance, no further delay is warranted,” the motion says. “This is a straightforward case that should proceed to trial as currently scheduled.”

The indictment against Pruden by a U.S. District Court for D.C. grand jury provides some of the details surrounding the case.

“After nightfall, Meridian Hill Park was informally known in the Washington, D.C., community to be a meeting location for men seeking to engage in consensual sexual encounters with other men,” the indictment says. “This practice is colloquially known as ‘cruising,’” the indictment continues. 

“Michael Thomas Pruden frequented Meridian Hill Park after nightfall and on multiple occasions, including those described below, assaulted men in Meridian Hill Park by approaching them with a flashlight, giving them police-style commands and spraying them with a chemical irritant,” the indictment states. 

Virginia court records show that the D.C. indictment against Pruden was handed down 11 months after a U.S. District Court jury in Alexandria, Va., found him not guilty of a charge of assault with a dangerous weapon for allegedly pepper spraying and hitting in the head with a large tree branch a man in Daingerfield Island Park in Alexandria, which is also known as a gay cruising site. 

Federal Public Defender A.J. Kramer, who is representing Pruden in the D.C. case, said in his own motion calling for postponing Pruden’s Feb. 26 trial date that he has at least two other unrelated trials coming up soon and what he called voluminous documents recently provided to him by prosecutors made the latest postponement necessary. 

“Firstly, while Mr. Pruden prefers to go to trial as soon as possible, counsel cannot be ready by February 26, 2024,” his motion states. “Given that the case against Mr. Pruden is actually five cases spanning a three-year period, the discovery is extremely voluminous, in excess of 7,000 pages,” he states in his motion. “Due to this as well as counsel’s other pending matters in the coming weeks, counsel is unable to effectively prepare motions and prep for trial under the current timeline.”

By the 7,000 pages of “discovery” documents, Kramer was referring to the requirement that prosecutors turn over to the defense attorney in advance of a trial details of the evidence prosecutors plan to present at a trial. U.S. District Court Judge Jia M. Cobb approved Pruden’s request for the postponement in a Feb. 5 ruling. 

Court records also show that Pruden was released on personal recognizance following his arrest into the custody of his mother, who lives in Norfolk, Va., where he has been staying since his release. Among other things, conditions for his release prohibit him from having any contact with the individuals he is charged with assaulting and require that he always remain inside his mother’s residence from sunset to sunrise. 

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Texas

Abbott tells UN to ‘pound sand’ amid criticism of anti-LGBTQ policies in Texas

Governor signed seven anti-LGBTQ laws last year

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Texas Republican Texas Gov. Greg Abbott signs the “Save Women’s Sports Act” on Aug. 7, 2023. (Photo courtesy of the Office of the Governor)

Texas Gov. Greg Abbott (R) on Sunday dismissed news coverage of a letter issued last month to the United Nations that expressed alarm over the “deteriorating human rights situation” for LGBTQ people in the Lone Star State.

Signed by Equality Texas, ACLU of Texas, GLAAD, the Human Rights Campaign, and the University of Texas at Austin School of Law Human Rights Clinic, the letter details how Texas legislators introduced 141 bills targeting the LGBTQ community, passing seven into law.

“The UN can go pound sand,” Abbott wrote in a post on X.

In 2023, the governor signed a ban on gender affirming care for transgender youth, a ban on diversity, equity, and inclusion programs at public universities, a ban on transgender athletes competing in college sports, a law allowing schools to use religious chaplains for counseling services, a ban on “sexually oriented performances” on public property accessible to minors (which targets drag shows), a law allowing schools to restrict LGBTQ books, and a ban on nondiscrimination ordinances by local governments.

The groups argued in their letter that these policies constitute a “systemic discriminatory policy” in violation of international human rights laws, such as the International Covenant on Civil and Political Rights, a multilateral treaty whose tenets are enforced by the UN Human Rights Committee.

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National

WATCH: Washington Post grills transphobic Libs of TikTok creator

Chaya Raichik reaffirmed anti-trans views

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Chaya Raichik, founder of Libs of TikTok is interviewed by Washington Post journalist Taylor Lorenz.in California. (Screenshot/YouTube The Washington Post)

Grilled on a range of topics during an interview with Washington Post journalist Taylor Lorenz, Chaya Raichik, spoke about the great replacement theory, the death of Nex Benedict, a 16-year-old nonbinary in high school student in Oklahoma, why she won’t delete her false accusations about the Uvalde shooter and other mass-shooters, her views on gender, feminism and more.

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