By Kerry Eleveld
Originally published on Advocate.com November 12 2010 3:00 PM ET
The U.S. Supreme Court voted Friday to keep to the “don’t ask, don’t tell” policy intact, rejecting a request by the Log Cabin Republicans that the court reinstate an injunction on the policy pending appeal. The court order was short and to the point, noting that Justice Anthony Kennedy referred the appeal to the full Supreme Court and further advising that Justice Elena Kagan, who had dealt with the policy as U.S. solicitor general, had not taken part in the deliberations.
“The application to vacate the stay entered by the United States Court of Appeals for the Ninth Circuit on November 1, 2010, presented to Justice Kennedy and by him referred to the Court is denied. Justice Kagan took no part in the consideration or decision of this application,” read the order from the Supreme Court.
The request by Log Cabin was always considered a long shot, but the group's lawyers had hoped to convince the court to suspend enforcement of the policy while the appeals process plays out. Government lawyers are presently appealing a September decision that found the law unconstitutional to the ninth circuit court of appeals.
Log Cabin made two entreaties to the Supreme Court — the initial request last week and another on Friday morning responding to the government’s request earlier this week that the “don’t ask, don’t tell” policy be kept in place pending appeal.
“We have sought and received permission from the U.S. Supreme Court to file this reply because the government’s opposition ignores critical points presented in our application to vacate the stay of the Ninth Circuit Court of Appeals,” said a Friday morning statement from Dan Woods, White & Case partner who is representing Log Cabin Republicans.
Last week, Log Cabin lawyers took the unusual step of appealing to Justice Kennedy to lift a ninth circuit court ruling that placed a stay on a worldwide injunction of the policy originally ordered by federal district court judge Virginia Phillips in September. Justice Kennedy had the option of making an individual ruling on the request or referring it to the entire Supreme Court.
Government lawyers filed their response to that appeal Wednesday, but Woods took the extra step of countering the filing from the U.S. Department of Justice.
Woods said he requested the opportunity to reply because he felt the government’s argument had failed on several key points: It did not address the fact that legislative repeal of the law is still “speculative,” it does not properly consider the “hardships to current and prospective servicemembers” if enforcement of DADT continues, and it “exaggerates” what the district court’s injunction does and does not require.
In the conclusion of the filing, Log Cabin lawyers wrote, “The district court’s judgment and permanent injunction followed a full trial on the merits of the important constitutional issues raised by this case, but the court of appeals’ order staying the enforcement of that judgment did not take into account the speculative nature of repeal — the premise of the government’s entire argument — and did not take into account the harms that would be suffered by current and prospective members of the armed forces while a stay is in place. The court of appeals failed to analyze the stay application in light of the governing law and the record before it in this case.”