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Story Updated : October 20, 2010 07:19:00 PM

Appeals Court Grants DADT Stay


REPEAL DADT X390 | ADVOCATE.COM

Less than 24 hours after a federal judge refused to block an injunction against "don't ask, don't tell," the U.S. court of appeals for the ninth circuit has done so — at least temporarily.

A three-judge panel ordered a stay requested by the Justice Department "temporarily in order to provide this court with an opportunity to consider fully the issues presented" in the federal lawsuit against DADT, waged by the Log Cabin Republicans since 2004.

It's unclear whether the ruling by ninth circuit judges Diarmuid F. O'Scannlain, Stephen S. Trott, and William A. Fletcher was a unanimous one or a split decision.

The panel ruled that attorneys representing the Log Cabin Republicans may file an opposition to its stay of the injunction by Monday. "We will be filing a much more detailed opposition to the motion for full stay pending appeal," said White and Case attorney Earle Miller, part of the legal team representing the gay Republican group in the lawsuit.

Earlier on Wednesday, the Department of Justice asked the ninth circuit to rule before the end of day on U.S. district judge Virginia A. Phillips's rejection of its request for a stay of her worldwide injunction on the “don’t ask, don’t tell” policy.

“We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion,” said the filing.

The Log Cabin Republicans issued the following statement Wednesday on the Justice Department's request to the ninth circuit:

"It has been eight days since the Department of Defense has suspended enforcement of the 'Don't Ask, Don't Tell' policy, and there has been no evidence of any adverse consequences," said the group's deputy executive director, Christian Berle. "Log Cabin Republicans believes that the Department of Justice is seriously underestimating the professional capacity of our brave servicemembers in continuing under a military that allows open service by gays and lesbians. We are prepared to defend this injunction and this ruling in whatever court or forum in which we are challenged."

Attorneys representing the Log Cabin Republicans vigorously fought the government's request for a stay. "Each argument that the government asserts as a basis for a stay has already been raised in a district court, which rejected them all — not cursorily, or in passing at an oral argument, but in extensive reasoned opinions at multiple stages of the proceedings below," attorney Dan Woods wrote Wednesday.

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Reader Comments
  • Name: Terry
    Date posted: 10/22/2010 9:31:02 AM
    Hometown: Pasadena

    Comment:

    Help Log Cabin continue to fight Don't Ask, Don't Tell at www.logcabin.org

  • Name: Roy
    Date posted: 10/21/2010 3:32:53 PM
    Hometown: Morrilton, Arkansas

    Comment:

    Let getequal.org stage a protest and march on Washington then

  • Name: Joseph
    Date posted: 10/21/2010 2:01:17 PM
    Hometown: Montgomery, AL

    Comment:

    (Continued) In case you're not aware, to override a veto, Congress does so with 2/3 of those present. When all House members are present, a veto is overridden with 290 votes (DOMA passed the House with 342--or 52 MORE than needed to override the veto). With the Senate, a veto requires 67 votes (DOMA passed the Senate with 85--or 18 more than needed) (Full percentage of passage in both chambers: In the House, 78.6%; In the Senate, 85%.) Clinton did achieve a large majority in the Electoral College, but his Presidency was retained more to the fact that Perot swiped more votes from Dole than from Clinton. BUT, had Clinton vetoed DOMA (and recall that Clinton did NOT get a popular majority), it's a pretty good bet that many of the more conservative Democrats (who opposed same-sex marriage) would have gone with Dole (or possibly Perot) and put Clinton's 2nd term into serious jeopardy. BTW, the GOP installed DOMA as part of their official platform in 1996 (even before it became law).

  • Name: Joseph
    Date posted: 10/21/2010 1:46:23 PM
    Hometown: Montgomery, AL

    Comment:

    Now, David, a little more history on DOMA. In 1993, a court in Hawai'i decided that the State MUST offer definitive proof that allowing same sex couples to marry would be detrimental to the State's interests. In light of that ruling, many states wanted to pre-empt being forced to recognize such marriages in their own states (clearly despite the Full Faith and Credit Clause of the US Constitution, but I digress...). In May of 1996, Bob Barr of Georgia (then GOPer) introduced DOMA into the House. By SEPTEMBER of 1996, the measure had passed both the House AND Senate by large margins). In the House, it passed 342-67 and in the Senate, it passed 85-14. (Bear in mind that the GOP majority only had 230 House members and 53 Senators when you look at the passage of DOMA in both chambers.) Clinton was running for re-election, and DOMA was sent to him less than 7 WEEKS before the election. Had Clinton vetoed DOMA, Congress had more than enough votes to overrride the veto. (cont.)

  • Name: ERichard
    Date posted: 10/21/2010 1:34:29 PM
    Hometown: NYC

    Comment:

    How about refusing to pay our federal income taxes! I am tired of taxation without representation! At least 10% of Americans are gay, (with more than 50% of all Americans supporting equality) think of the impact it would make if our "GAY DOLLARS" could not be counted on. Never mind donations to the DNC or candidates that have let us down and dropped the ball. Like most of the posters here, I am also so frustrated with the lack of advancement of equal rights for the LGBT community. Glad to see I am not the only one. But I still support my President, I couldn't imagine a McCain/Palin presidency!!!!! If things don't get better, I am packing my bags and moving to Canada!!!!!

  • Name: Joseph
    Date posted: 10/21/2010 1:29:12 PM
    Hometown: Montgomery, AL

    Comment:

    (continuing) Had Clinton NOT included the language that service members not be asked about sexual orientation in the first place, we wouldn't be talking about "ending" the policy in the first place as the military would STILL have a FULL ban on gays and lesbians serving, openly or otherwise. (As an aside, it was later learned that a policy directed at Nat'l Guardsmen and Army Reservists actually allowed for gays to serve because that policy was designed to keep those men and women from using "I'm gay" as a way to get out of their duty.) So, that puts Clinton's "heinous" crime of DADT into a bit of perspective which you obviously chose to ignore (unless you actually didn't know this in the first place--which suggests you might need to brush up on your history before telling others to do so).

  • Name: Joseph
    Date posted: 10/21/2010 1:17:43 PM
    Hometown: Montgomery, AL

    Comment:

    (Continued) Nunn, backed by a strong opposition to letting gays serve openly, was willing to accept the COMPROMISE that DADT offered. The proposal (Don't Ask, Don't Tell, Don't Pursue) consisted of THREE equal parts. First, the military would now be prohibited from directly inquiring as to a recruit's or active duty service member's sexual orientation AT ANY LEVEL. Second, a recruit or active-duty service member would be allowed to serve provided he/she didn't tell anyone (some questions concerning those offering medical and religious services were raised--specifically with regards to the usual levels of confidentiality normally required of medical personnel and the clergy; the base presumption was disclosure ONLY if the service member posed a direct threat to himself or his comrades). Third, IF evidence surfaced of a service member's homosexuality, the military was not supposed to pursue the issue, unless the evidence involved a degree of risk to security. (to continue)

  • Name: robert
    Date posted: 10/21/2010 1:06:51 PM
    Hometown: cranberry pa

    Comment:

    Department of Justice? What an oxymoron THAT is.

  • Name: Joseph
    Date posted: 10/21/2010 1:06:46 PM
    Hometown: Montgomery, AL

    Comment:

    Robert in Birmingham posted, "Will someone hear please take note of our history and review the president that was in office when DOMA and DADT were signed into law." Fine, we'll do that just as soon as you look at the WHOLE history surrounding both acts. For starters, let's go with DADT (since it's the actual focus of this issue). Bill Clinton was the one who went out on a limb and actually said to let gays and lesbians serve openly. (Or did you forget that little part of DADT history?) Clinton's problems came not so much from the military brass (though they certainly weren't happy with it) but from the GOP in Congress and, more notably, a large number of Dems in Congress, with the head of the Senate Armed Services Committee, Sam Nunn of Georgia (a Dem), leading the opposition. Nunn was the one who took reporters on a tour of submarine quarters to show how little privacy there was and how your (straight) sons would be at the mercy of predatory queers. (to be continued)

  • Name: Justin
    Date posted: 10/21/2010 12:50:31 PM
    Hometown: Boston

    Comment:

    GetEQUAL is hardly an organization like the HRC. They believe strongly in non-violent acts of civil disobedience as a strategy to create change. You should check them out http://getequal.org. I like what they are doing.

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