The US Court of Appeals for the Ninth Circuit [official website] on Wednesday lifted a stay [order, PDF] in Log Cabin Republicans v. USA [case materials], ordering an immediate end to enforcement of the military's "Don't Ask Don't Tell" (DADT) policy [10 USC § 654 text; JURIST news archive], due to the Obama administration's assertion that it is unconstitutional [JURIST report]. This decision comes after the Ninth Circuit's denial [JURIST report] of a motion [text, PDF] by the US government that the court suspend the government's appeal of an injunction [JURIST report] issued by the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. In November, the government requested and received a stay [text, PDF; JURIST report] that suspended enforcement of the injunction. The government requested that the appeal be placed on hold in light of the Don't Ask, Don't Tell Repeal Act of 2010 [text and materials], arguing that moving forward with the appeal would interfere with the repeal schedule that the Act sets in place. After hearing seven months worth of arguments and briefs, the Ninth Circuit rejected this appeal and released the stay.
Appellee/cross-appellant's motion to lift this court's November 1, 2010, order granting a stay of the district court's judgment pending appeal is granted. In their briefs, appellants/cross-appellees do not contend that 10 USC § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 USC § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.Neither of the original parties to the suit, the Obama administration nor the Log Cabin Republicans [advocacy website], have commented on the decision.
In May, the US House of Representatives passed the $690 billion National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials], which contains a provision [Sec. 533] that would delay the repeal of DADT [JURIST report]. The repeal had reportedly been on track [JURIST report] to be completed by midsummer. The provision would require the chiefs of each military branch to provide written certification that the repeal of DADT be harmful to the "readiness, effectiveness, cohesion, and morale" of armed forces units. The Don't Ask, Don't Tell Repeal Act of 2010 was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.