Posted on 11/02/2010 1:49:02 PM PDT by 2ndDivisionVet
A divided three-judge panel granted the Obama administration's request to uphold the controversial "Don't Ask, Don't Tell" policy until all legal methods are exhausted.
Monday's 2-1 decision struck down an Oct. 12 ruling from a district court judge in Riverside, CA, which declared the law unconstitutional.
Judge Virginia Phillips, who wrote the decision, ordered a worldwide ban on the law, which prevented its enforcement until Oct. 20, when the 9th Circuit Court granted an emergency request from the Obama administration for a stay on the injunction.
The ruling was a setback for the suit's plaintiffs, Log Cabin Republicans, who had stated leading up to the ruling that they believed the higher court would side with them just as the district court had.
"The court's ruling is a disappointment not only to us, but also to all gay and lesbian service members who bravely put themselves in harm's way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied," said Dan Woods, the White & Case partner who is representing Log Cabin Republicans, in a news release.
Woods said he will discuss the decision with the advocacy group in order to determine whether they will make an appeal to the U.S. Supreme Court.
In the majority opinion, the court said it found merit in the Obama administration's argument that ending "Don't Ask, Don't Tell" would put national security at risk.
"We conclude that the government's colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing," read the opinion.
[Click here to read the entire Circuit Court ruling here. (PDF)]
In their explanation, the federal judges implied that "Don't Ask, Don't Tell" is an issue best left for Congress to decide and one that may soon become moot if the policy is voted on in the forthcoming lame duck term.
Accordingly, Peter Renn, a staff attorney for Lambda Legal, which filed a "friend of the court" brief in support of the Log cabin Republicans, reminded those affected by the decision that all legal manners weren't exhausted.
"It's important to remember what today's ruling was not: a consideration of the merits of the case," he said in a news release. "That remains for another day."
The Obama administration's motion for the stay specifically stated that members of the administration disagree with the policy.
"The president strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff," the motion read.
But the papers filed by the administration side-stepped the issue, saying that no legal action should be taken against "Don't Ask, Don't Tell" in a court of law without "needed deliberation, advance planning, and training."
The 9th Circuit Court said in Monday's ruling that orderly transition will only happen if "Don't Ask, Don't Tell" remains law for the time being.
Defense Secretary Robert M. Gates will present his review of the law and the implications of its repeal by Dec. 1.
Judge William Fletcher, who wrote the dissenting opinion, said he agreed with the stay in all aspects but one. He would move to prevent soldiers from being discharged during the appeal.
"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," he wrote.
Fletcher was appointed by former President Bill Clinton, who signed the law into effect in 1993.
The Obama administration's defense of the policy in court has raised harsh criticism from gay rights groups.
"We urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy," said R. Clarke Cooper, executive director of the Log Cabin Republicans in a news release. "The president claims to want to see 'Don't Ask, Don't Tell' ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans."
Joe Solmonese, president of the Human Rights Campaign, couldn't agree more.
"For the good of our national security, the endless legal wrangling and political posturing has to stop," he said in a news release.
All I can say is Good.
The Federal Courts have absolutely no jurisdiction on this issue. None.
I am a retired USAF guy. I still work in DoD. My position has softened on this. Just make sure there are no quartering issues (bathrooms, sleeping arrangements) and let em serve. Gary marriage? No. Take a bullet for their country or make that other poor bastard take one for his? Go for it.
It’s all so disgusting. The military is going to be reduced to another social experiment. Letting women in en masse has been nothing but trouble and added expense, and this will be worse.
If these people had any honesty they would identify themselves properly.
Homo Rights Campaign
These people ought to familiarize themselves with “truth in advertising.”
What does the Constitution have to do with the decisions of judges in the 9th Circuit?
Judges afraid of impeachment because of the political tectonic shift that’s happening today.
Give the power to decide this back to the military.
That's not where it belongs. See Post 3.
Gays do serve. They just don’t act gay in the military.
“The court’s ruling is a disappointment not only to us, but also to all gay and lesbian service members who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, the White & Case partner who is representing Log Cabin Republicans, in a news release.
_____________
Woods: STFU. Homosexual military members have all the same rights heterosexual military members have, including the right to marry anybody of the opposite sex who isn’t already married and will have them.
Colonel, USAFR
It's a Constitutional right to stand up in a foxhole and declare your sexual preference? That's not in my copy.
Log Cabin Republicans are plaintiffs? Ann Coulter must be so proud.
The military is going to be reduced to another social experiment.
“Going to be”? Why do you think that even back in the early 80s there was a whole career field called “Social Actions”? Stocked, in my experience, with people who couldn’t make it in other career fields.
Colonel, USAFR
Thanks for your service...and I say that as a daughter of a JAG officer of 21 years. Were he still this side of heaven, he’d say it is nothing short of defining discipline downward.
I OPPOSE DADT.
I say Do Ask. And if you are gay...then GTFO
Only thing I would change is gay to homosexual (tired of the left high jacking the English language; Not you R_2nd; but in general, it always starts with the left)..
Perfect solution Close the 9th Circus majority are bleeding heart liberals. They decision they make are like Obummer a flip flop, another flip flop. since 1993 it has been DADT. i tell when I was in the Marines , we did not have that kinda of problem. If you couldnt make it the marines you were a pansy. now we have a pansy for a pissant and a candy ass Congress and Senate, No backbone and no balls. If you want to chose to be gay to bad so sad, there is no reason to be gay it is choice. Hey i like the way a woman looks does that make me a pervert no. Hey women look good.
DADT stays until all the gays can get their act together. The femininazation of the american male has become politically correct. America needs t have some changes that correct the stupidity of liberalism
Congress gave jurisdiction over this issue to the courts--establishing courts is another one of their powers--when they made 28 USC 1331 law. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. It would take another act of Congress to remove jurisdiction from the district courts.
My biggest fear is that the “lame duck congress” will pass this and send it to the POTUS to be signed. There has got to be some way to stop them from doing so.
I would like all the newly elected Republicans to tell the POTUS that they will shut down the government IF he uses a lame duck session to foist this nonsense on the military.
Also, SecDef Gates and CJCS Mullin need to be told to step down by the newly elected. Then the Republicans in the Senate should filibuster until the POTUS picks a SecDef and CJCS that want to keep open homosexuals out of the military.
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